Vol. 76 Thursday, No. 198 October 13, 2011
Pages 63537–63816
OFFICE OF THE FEDERAL REGISTER
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Contents Federal Register Vol. 76, No. 198
Thursday, October 13, 2011
Agriculture Department Meetings; Sunshine Act, 63601 See Animal and Plant Health Inspection Service See Forest Service Coast Guard RULES RULES Adjustment of Appendices to the Dairy Tariff-Rate Import Security Zones: Quota Licensing Regulation for the 2011 Tariff-Rate Columbia and Willamette Rivers, Dredge Vessels Patriot Quota Year, 63538–63541 and Liberty, 63547–63549 NOTICES Animal and Plant Health Inspection Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 63626–63627 Importation Authorizations: Fresh Apricot, Sweet Cherry, and Plumcot Fruit from Commerce Department South Africa, 63600 See Census Bureau Antitrust Division See Industry and Security Bureau NOTICES See International Trade Administration National Cooperative Research and Production Act of 1993: See National Oceanic and Atmospheric Administration ASTM International, 63658 Cooperative Research Group on Pre-Ignition Prevention Consumer Product Safety Commission Program, 63659–63660 NOTICES IMS Global Learning Consortium, Inc., 63659 Meetings: Network Centric Operations Industry Consortium, Inc., Chronic Hazard Advisory Panel on Phthalates and 63659 Phthalate Substitutes, 63610 PXI Systems Alliance, Inc., 63658 Meetings; Sunshine Act, 63610–63611
Army Department Defense Department NOTICES See Army Department Privacy Act; Systems of Records, 63611–63612 NOTICES Meetings: Arts and Humanities, National Foundation Defense Advisory Committee on Military Personnel See National Foundation on the Arts and the Humanities Testing, 63611 Bureau of Ocean Energy Management Education Department NOTICES Outer Continental Shelf Official Protraction Diagram, Lease NOTICES Maps, etc.; Availability: Meetings: Correction, 63654 National Committee on Foreign Medical Education and Accreditation, 63612–63613 Census Bureau NOTICES Energy Department Determinations: See Energy Efficiency and Renewable Energy Office Voting Rights Act Amendments of 2006, 63602–63607 See Federal Energy Regulatory Commission RULES Centers for Disease Control and Prevention National Environmental Policy Act Implementing NOTICES Procedures, 63764–63799 Meetings: PROPOSED RULES Board of Scientific Counselors, National Center for Liquid-Immersed and Medium- and Low-Voltage Dry-Type Environmental Health/Agency for Toxic Substances Distribution Transformers: and Disease Registry, 63623 Negotiated Rulemaking Subcommittee/Working Group Healthcare Infection Control Practices Advisory Meetings, 63566–63567 Committee, 63622–63623 NOTICES Meetings: Children and Families Administration Environmental Management Site-Specific Advisory NOTICES Board, Hanford, 63613–63614 Meetings: Secretary of Energy Advisory Board Natural Gas President’s Committee for People with Intellectual Subcommittee, 63613 Disabilities; Conference Call, 63623–63624 Energy Efficiency and Renewable Energy Office Civil Rights Commission NOTICES NOTICES Meetings: Meetings: Biomass Research and Development Technical Advisory Louisiana Advisory Committee, 63601 Committee, 63614
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Environmental Protection Agency Federal Energy Regulatory Commission RULES NOTICES Approvals and Promulgations of Air Quality Initial Market-Based Rate Filings Including Requests for Implementation Plans: Blanket Section 204 Authorizations: Indiana; Miscellaneous Metal and Plastic Parts Surface Agua Caliente Solar, LLC, 63614–63615 Coating Rules, 63549–63554 Initiations of Proceedings and Refund Effective Dates: Transportation Conformity: Atlantic Path 15, LLC, 63615 MOVES Regional Grace Period Extension, 63554–63561 PROPOSED RULES Federal Maritime Commission Approvals and Promulgations of Air Quality PROPOSED RULES Implementation Plans: Certainty of Terms of Service Contracts and NVOCC Service Indiana; Miscellaneous Metal and Plastic Parts Surface Arrangements, 63581–63582 Coating Rules, 63574–63575 NOTICES Transportation Conformity: Agreements Filed, 63618–63619 MOVES Regional Grace Period Extension, 63575–63581 NOTICES Meetings: Federal Reserve System Environmental Science Center Microbiology Laboratory, NOTICES 63615–63616 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 63619–63620 Changes in Bank Control: Equal Employment Opportunity Commission Acquisitions of Shares of Bank or Bank Holding NOTICES Company, 63620 SES Performance Review Board – Appointment of Formations of, Acquisitions by, and Mergers of Bank Members, 63616 Holding Companies, 63621 Formations of, Acquisitions by, and Mergers of Bank Executive Office of the President Holding Companies: Correction, 63621 See Presidential Documents Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies, 63621 Federal Aviation Administration PROPOSED RULES Fish and Wildlife Service Airworthiness Directives: PROPOSED RULES Eclipse Aerospace, Inc. Airplanes Equipped With Pratt & Endangered and Threatened Wildlife and Plants: Whitney Canada, Corp. PW610F–A Engines, 63571– 12-Month Finding on a Petition to List a Distinct 63573 Population Segment of the Red Tree Vole, 63720– NOTICES 63762 Grants of Petitions with Conditions: Waiver of Terms of Order Limiting Scheduled Operations at LaGuardia Airport, 63702–63714 Forest Service Technical Standard Orders: NOTICES Airborne Supplemental Navigation Equipment Using Meetings: Global Positioning System, 63714 Ashley Resource Advisory Committee, 63600–63601 Colorado Recreation Resource Advisory Committee, 63600 Federal Communications Commission Land Between the Lakes Advisory Board, 63600 RULES Common Carriers, 63561–63563 Health and Human Services Department Reexamination of Roaming Obligations of Commercial See Centers for Disease Control and Prevention Mobile Radio Service Providers and Other Providers of See Children and Families Administration Mobile Data Services, 63561 See Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, See National Institutes of Health NOTICES Submissions, and Approvals, 63616–63618 Findings of Research Misconduct, 63621–63622 Meetings: Federal Election Commission National Biodefense Science Board, 63622 PROPOSED RULES Internet Communication Disclaimers, 63567–63569 Health Resources and Services Administration Procedure Following the Submission of Probable Cause NOTICES Briefs by the Office of General Counsel, 63570–63571 Meetings: NOTICES Bureau of Health Professions All-Advisory Committee, Meetings; Sunshine Act, 63618 63624
Federal Emergency Management Agency Homeland Security Department NOTICES See Coast Guard Preliminary Damage Assessment for Individual Assistance See Federal Emergency Management Agency Operations Manual; Availability, 63628 See U.S. Citizenship and Immigration Services
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Housing and Urban Development Department Land Management Bureau NOTICES NOTICES Public Housing Assessment System: Meetings: Proposed Physical Condition Interim Scoring, 63640– Front Range Resource Advisory Council; Cancellation, 63654 63656
Indian Affairs Bureau Legal Services Corporation NOTICES NOTICES Bureau of Indian Education Advisory Board for Exceptional Meetings; Sunshine Act, 63660–63661 Children; Requests for Nominations, 63654–63656 Merit Systems Protection Board Industry and Security Bureau RULES NOTICES Mandatory Electronic Filing for Agencies and Attorneys, Meetings: Washington Regional and Denver Field Office, 63537– Sensors and Instrumentation Technical Advisory 63538 Committee, 63607–63608 Morris K. Udall Scholarship and Excellence in National Interior Department Environmental Policy Foundation See Bureau of Ocean Energy Management NOTICES See Fish and Wildlife Service Agency Information Collection Activities; Proposals, See Indian Affairs Bureau Submissions, and Approvals, 63661–63663 See Land Management Bureau National Aeronautics and Space Administration Internal Revenue Service NOTICES PROPOSED RULES Meetings: Tax Return Preparer Penalties Under Section 6695; Advisory Council; Human Exploration and Operations Correction, 63574 Committee, 63663–63664 NOTICES National Foundation on the Arts and the Humanities Meetings: NOTICES Area 6 Taxpayer Advocacy Panel, 63715 Meetings: Area 7 Taxpayer Advocacy Panel, 63716–63717 Arts Advisory Panel National Endowment for Arts, 63664 Taxpayer Advocacy Panel Earned Income Tax Credit Federal Council on Arts and Humanities; Arts and Project Committee, 63716 Artifacts Indemnity Panel Advisory Committee, Taxpayer Advocacy Panel Joint Committee, 63717 63665 Taxpayer Advocacy Panel Notice Improvement Project Humanities Panels, 63664–63665 Committee, 63717 President’s Committee on Arts and Humanities National Taxpayer Advocacy Panel Small Business/Self Employed Endowment for Arts, 63665–63666 Correspondence Exam Practitioner Engagement Meetings; Sunshine Act, 63666 Project Committee, 63715 Taxpayer Advocacy Panel Small Business/Self Employed National Institutes of Health Correspondence Exam Toll Free Project Committee, NOTICES 63716 Meetings: Taxpayer Advocacy Panel Tax Forms and Publications Center for Scientific Review, 63625–63626 Project Committee, 63717 Eunice Kennedy Shriver National Institute of Child Taxpayer Advocacy Panel Taxpayer Assistance Center Health and Human Development, 63624 Project Committee, 63715–63716 National Heart, Lung, and Blood Institute Notice, 63625– Taxpayer Advocacy Panel Volunteer Income Tax 63626 Assistance Project Committee, 63716 National Institute of Mental Health, 63624–63625 International Trade Administration National Oceanic and Atmospheric Administration NOTICES RULES Export Trade Certificates of Review: Central Regulatory Areas of Gulf of Alaska: Alaska Longline Cod Commission, Application no. 10– Pacific Cod by Vessels Harvesting Pacific Cod for 1A001, 63608–63609 Processing by Inshore Component; Closure, 63564 Application (92–10A01), Aerospace Industries Snapper–Grouper Fishery of South Atlantic: Association of America Inc., 63608 Closure of 2011–2012 Recreational Sector for Black Sea Bass in South Atlantic, 63563 International Trade Commission NOTICES NOTICES Meetings: Determinations Not to Review Initial Determinations: New England Fishery Management Council, 63609 Certain Flat Panel Display Devices, and Products Permits: Containing Same, 63657 Marine Mammals; File No. 16443, 63609–63610 Investigations: Certain Devices for Mobile Data Communication, 63657– National Science Foundation 63658 NOTICES Meetings: Justice Department Advisory Committee for Education and Human See Antitrust Division Resources, 63666–63667
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Nuclear Regulatory Commission NOTICES RULES Major Disaster Declarations: Design-Basis Hurricane and Hurricane Missiles for Nuclear Delaware, 63700 Power Plants, 63541–63542 Missouri; Amendment 1, 63700–63701 PROPOSED RULES New York; Amendment 2, 63699 Event Reporting Guidelines, 63565–63566 New York; Amendment 4, 63700 NOTICES Pennsylvania; Amendment 2, 63700 Agency Information Collection Activities; Proposals, Puerto Rico; Amendment 4, 63699 Submissions, and Approvals, 63667 Texas; Amendment 2, 63699–63700 Draft Interim Staff Guidance: Guidelines for Preparing and Reviewing Licensing State Department Applications for Production of Radioisotopes; NOTICES Request for Comments, 63668 Culturally Significant Objects Imported for Exhibition Exemptions: Omaha Public Power District, Fort Calhoun Station, Unit Determinations: 1, 63668–63672 Anglo–Saxon Hoard; Gold from England’s Dark Ages, Non-Safeguards Information for Contention Preparation: 63701 Acceptance of Application for Special Nuclear Materials Aphrodite and Gods of Love, 63702 License, etc., 63672–63676 Diego Rivera; Murals for Museum of Modern Art, 63701– Staff Guidance Regarding Nuclear Criticality Safety 63702 Analysis for Spent Fuel Pools; Availability: Johan Zoffany RA; Society Observed, 63701 Final Division of Safety Systems Interim Staff Guidance Designations as Global Terrorists: DSS–ISG–2010–01, 63676–63677 Conspiracy of Fire Nuclei, aka as Conspiracy of the Nuclei of Fire, etc., 63702 Personnel Management Office NOTICES Surface Transportation Board Excepted Service, 63677–63678 PROPOSED RULES Reporting Requirements for Positive Train Control Expenses Postal Regulatory Commission and Investments, 63582–63599 NOTICES NOTICES Post Office Closings, 63678–63679 Operation Exemption: Big Spring Rail System, Inc.; Transport Handling Presidential Documents Specialists, Inc., 63714–63715 PROCLAMATIONS Special Observances: Columbus Day (Proc. 8735), 63809–63810 Transportation Department Fire Prevention Week (Proc. 8732), 63801–63804 See Federal Aviation Administration Leif Erikson Day (Proc. 8734), 63807–63808 See Surface Transportation Board National School Lunch Week (Proc. 8733), 63805–63806 EXECUTIVE ORDERS Treasury Department Defense and National Security: See Internal Revenue Service Classified Networks and Information Sharing; Structural Reforms (EO 13587), 63811–63815 U.S. Citizenship and Immigration Services Securities and Exchange Commission NOTICES PROPOSED RULES Designation of Republic of South Sudan for Temporary Conflict Minerals: Protected Status, 63629–63635 Roundtable on Issues, 63573–63574 Extension of Designation of Sudan for Temporary Protected NOTICES Status: Meetings: Automatic Extension of Employment Authorization Advisory Committee on Small and Emerging Companies, Documentation for Sudanese TPS Beneficiaries, 63679–63680 63635–63640 Public Roundtable on Execution, Clearance and Settlement of Microcap Securities, 63680 Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 63685–63689, 63696–63698 Separate Parts In This Issue BATS Y–Exchange, Inc., 63683–63685, 63695–63696 Chicago Board Options Exchange, Inc., 63680–63682, Part II 63698–63699 Interior Department, Fish and Wildlife Service, 63720– International Securities Exchange, LLC, 63689–63695 63762 Municipal Securities Rulemaking Board, 63682–63683 Small Business Administration Part III RULES Energy Department, 63764–63799 Small Business Jobs Act: Implementation of Conforming and Technical Part IV Amendments, 63542–63547 Presidential Documents, 63801–63815
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To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Reader Aids listserv.access.gpo.gov and select Online mailing list Consult the Reader Aids section at the end of this page for archives, FEDREGTOC-L, Join or leave the list (or change phone numbers, online resources, finding aids, reminders, settings); then follow the instructions. and notice of recently enacted public laws.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Proclamations: 8732...... 63803 8733...... 63805 8734...... 63807 8735...... 63809 Executive Orders: 13587...... 63811 5 CFR 1201...... 63537 7 CFR 6...... 63538 10 CFR 50...... 63541 52...... 63541 1021...... 63764 Proposed Rules: 50...... 63565 431...... 63566 11 CFR Proposed Rules: 110...... 63567 111...... 63570 13 CFR 108...... 63542 120...... 63542 123...... 63542 125...... 63542 14 CFR Proposed Rules: 39...... 63571 17 CFR Proposed Rules: 229...... 63573 249...... 63573 26 CFR Proposed Rules: 1...... 63574 33 CFR 165...... 63547 40 CFR 52...... 63549 93...... 63554 Proposed Rules: 52...... 63574 93...... 63575 46 CFR Proposed Rules: 530...... 63581 531...... 63581 47 CFR 20...... 63561 64...... 63561 49 CFR Proposed Rules: 1241...... 63582 50 CFR 622...... 63563 679...... 63564 Proposed Rules: 17...... 63720
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Rules and Regulations Federal Register Vol. 76, No. 198
Thursday, October 13, 2011
This section of the FEDERAL REGISTER (202) 653–7200; fax: (202) 653–7130; or viewing and downloading in electronic contains regulatory documents having general e-mail: [email protected]. form. Access to appeal documents at the applicability and legal effect, most of which FOR FURTHER INFORMATION CONTACT: Repository is limited to the parties and are keyed to and codified in the Code of William D. Spencer, Clerk of the Board, representatives of the appeals in which Federal Regulations, which is published under they were filed. 50 titles pursuant to 44 U.S.C. 1510. U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC Generally, pleadings added to the The Code of Federal Regulations is sold by 20419; (202) 653–7200, fax: (202) 653– Repository are full-text searchable, the Superintendent of Documents. Prices of 7130 or e-mail: [email protected]. including printed materials that have been converted to electronic format by new books are listed in the first FEDERAL SUPPLEMENTARY INFORMATION: REGISTER issue of each week. scanning. This is accomplished using 1. History of MSPB’s E-Filing Initiative optical character recognition software On February 26, 2008, MSPB issued that converts image-only electronic MERIT SYSTEMS PROTECTION final regulations at 5 CFR parts 1201, formats into an image-plus-text BOARD 1203, 1208, and 1209 governing e-filing. electronic format. Making case-related documents full-text searchable makes it 5 CFR Part 1201 73 FR 10127. Under those regulations, virtually any type of pleading can be easier for both the parties to MSPB proceedings and MSPB itself to search Mandatory Electronic Filing for filed electronically via MSPB’s electronic filing application—e-Appeal case files for pertinent materials. Agencies and Attorneys at Washington Although e-Appeal Online has been Online. This includes the initial original Regional Office and Denver Field valuable to both MSPB and its appeal in matters within the Board’s Office customers, some benefits can only be original and appellate jurisdiction, as realized when the entire case file is AGENCY: Merit Systems Protection well as all subsequent pleadings by the available in electronic form. If only one Board. parties in such appeals. In addition to party is e-filing, only part of the case file the pleadings on the merits of these ACTION: Interim rule with request for will generally be available to MSPB and appeals, e-Appeal Online can be used in comments. to the parties in an appeal in electronic subsidiary or addendum proceedings, form. In these circumstances, both SUMMARY: This rule informs the public including petitions for enforcement, MSPB employees and the parties need that the U.S. Merit Systems Protection motions for attorney fee awards, access to the paper case file in order to Board (MSPB or Board) is launching a motions for compensatory or have access to the entire record. If the pilot program under which the consequential damages, designations of entire case file were available in Washington Regional Office (WRO) and representation, and notices of changes electronic form, neither MSPB Denver Field Office (DEFO) will require to contact information. 73 FR 10129; 5 employees nor the parties and their all pleadings filed by agencies and CFR 1201.14(b). These regulations representatives would need to have attorneys who represent appellants in require parties and representatives who access to the paper case file in order to MSPB proceedings to be electronically elect to e-file to follow the instructions do their jobs. If e-filing were mandatory filed (e-filed). This requirement will for e-filing at MSPB’s e-Appeal Online for agencies and attorneys who apply to all pleadings except those (https://e-appeal.mspb.gov). 5 CFR represent appellants, scanning the containing classified information or 1201.14(d). remaining paper pleadings of pro se Sensitive Security Information (SSI) in 2. Benefits of MSPB’s E-Filing Initiative appellants who have not taken all adjudicatory proceedings before the advantage of e-filing will become Board. Any agency or appellant’s E-Appeal Online is more than an manageable, and the Board and the attorney who believes e-filing would application for sending and receiving parties would be able to realize the create an undue burden may request an pleadings in electronic form; it benefits of fully electronic case files. exemption from the administrative comprises an electronic case file of all judge; however, requests will generally relevant electronic documents relating 3. Mandatory E-Filing for WRO and be considered only for pleadings that to a particular appeal. This includes an DEFO include scanned material, for example, online Repository of all documents In the February 26, 2008 Federal not documents prepared and saved in a issued by MSPB in a particular case, Register notice, MSPB announced that it word processing program, and will be such as notices, orders, decisions, and was giving serious consideration to granted only when supported by a other documents issued by MSPB to the mandating e-filing for agencies and specific and detailed explanation, such parties, as well as pleadings filed via e- attorneys who represent appellants in as when the submission of a Appeal Online. Also available in the MSPB proceedings, and MSPB voluminous amount of scanned online Repository are pleadings filed at welcomed comments on this issue. 73 documents would create a hardship for the petition for review stage of FR 10127–28. a party. adjudication, even if filed in paper form, In response to the February 26, 2008, and some pleadings filed at the regional announcement in the Federal Register DATES: This rule is effective January 11, office level. The Repository also about the possibility of mandatory 2012. includes an electronic ‘‘docket sheet’’ e-filing for agencies and attorneys, ADDRESSES: Send or deliver comments that lists all documents issued by MSPB MSPB received only one comment. The to the Office of Clerk of the Board, U.S. to the parties, as well as all pleadings commenter acknowledged the Merit Systems Protection Board, 1615 M filed by the parties, including those advantages of such a rule, but identified Street, NW., Washington, DC 20419; pleadings that are not available for two disadvantages: (1) Agencies would
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have to upgrade their equipment to would consider proposing a final DEPARTMENT OF AGRICULTURE accommodate the scanning of lengthy agency-wide rule that would make documents, and (2) when pro se e-filing mandatory for agencies and Office of the Secretary appellants do not elect to e-file, agencies attorneys who represent appellants. 7 CFR Part 6 would have the additional burden of To provide time for agencies to preparing and submitting documents in comply with this rule, we are setting the two formats, i.e., electronic and paper. Adjustment of Appendices to the Dairy effective date of this new rule 90 days Tariff-Rate Import Quota Licensing E-Mail of March 25, 2008. We have in the future, on January 11, 2012. This considered the comment. Regulation for the 2011 Tariff-Rate new rule will apply only to appeals As to the equipment required, we Quota Year filed on or after January 11, 2012. recognize that some federal agency AGENCY: Office of the Secretary, USDA. offices may not be well-equipped to List of Subjects in 5 CFR Part 1201 ACTION: Final rule. produce and upload agency files as electronic documents. However, in light Administrative practice and SUMMARY: This document sets forth the of the ever-increasing affordability of procedure, Electronic filing. revised appendices to the Dairy Tariff- high-quality scanners and related Accordingly, MSPB amends 5 CFR Rate Import Quota Licensing Regulation software, we believe the number of part 1201 as set forth below: for the 2011 quota year reflecting the offices that would be adversely affected cumulative annual transfers from by such a rule would be relatively small. PART 1201—[AMENDED] Appendix 1 to Appendix 2 for certain We note also that e-filing is already dairy product import licenses mandatory in many state and federal ■ 1. The authority citation for part 1201 permanently surrendered by licensees courts. Nevertheless, this Interim Rule continues to read as follows: or revoked by the Licensing Authority. takes the commenter’s concern into DATES: Effective Date: October 13, 2011. Authority: 5 U.S.C. 1204 and 7701. account and provides for exemptions in FOR FURTHER INFORMATION CONTACT: appropriate circumstances. ■ 2. In § 1201.14, add paragraph (p) to Abdelsalam El-Farra, Dairy Import As to the commenter’s concerns about read as follows: Licensing Program, Import Policies and the extra work that would be entailed Export Reporting Division, U.S. when appellants do not e-file, we § 1201.14 Electronic filing procedures. Department of Agriculture, 1400 believe those concerns are overstated. In * * * * * Independence Avenue, SW., Stop 1021, that event, it is true that a paper copy Washington, DC 20250–1021; or by of the agency file would have to be (p)(1) Except as provided in telephone at (202) 720–9439; or by printed and mailed. It is not the case, paragraphs (p)(2) and (3) of this section, e-mail at: abdelsalam.el- however, that all of the extra work all pleadings (including the initial [email protected]. traditionally involved in assembling an appeal) except those containing agency file would still need to be done. classified information or Sensitive SUPPLEMENTARY INFORMATION: The A party that e-files a pleading that Security Information filed with the Foreign Agricultural Service, under a contains three or more attachments Washington Regional Office (WRO) and delegation of authority from the must describe and bookmark the the Denver Field Office (DEFO) by Secretary of Agriculture, administers the attachments so that each attachment is agencies or attorneys must be e-filed. Dairy Tariff-Rate Import Quota listed in a table of contents and Agencies and attorneys in proceedings Licensing Regulation codified at 7 CFR bookmarked in the electronic version. 5 in the WRO and the DEFO must register 6.20–6.37 that provides for the issuance CFR 1201.14(g)(3). In the assembled as e-filers pursuant to paragraph (e) of of licenses to import certain dairy pleading, the table of contents will list this section. articles under tariff-rate quotas (TRQs) each attachment and the page number (2) Agencies or attorneys who believe as set forth in the Harmonized Tariff on which it starts. This pleading can be that e-filing would create an undue Schedule of the United States. These printed and mailed as is; there would be burden on their operations may request dairy articles may only be entered into no need for the agency to place physical an exemption from the administrative the United States at the low-tier tariff by tabs on the attachments, or to manually judge for a specific appeal and/or or for the account of a person or firm to create a separate table of contents. Thus, pleading. Such a request shall include a whom such licenses have been issued even when the appellant is not an specific and detailed explanation why and only in accordance with the terms e-filer, we do not see a significant e-filing would create an undue burden. and conditions of the regulation. increase in the time required to Licenses are issued on a calendar year assemble and serve the agency file. (3) Except in unusual circumstances, basis, and each license authorizes the When all parties are e-filing, we believe exemptions granted under this section license holder to import a specified that there will be a net savings of time shall apply only to pleadings that quantity and type of dairy article from associated with creating and serving the include scanned material. All other a specified country of origin. The Import agency file electronically. pleadings except those containing Policies and Export Reporting Division, Although the MSPB announced that it classified information or Sensitive Foreign Agricultural Service, U.S. was considering making e-filing Security Information must be e-filed. Department of Agriculture, issues these mandatory for all agencies and attorneys The administrative judge may licenses and, in conjunction with U.S. appearing before the MSPB, this interim periodically revisit the need for an Customs and Border Protection, U.S. rule affects only parties appearing exemption granted under this Department of Homeland Security, before the WRO and the DEFO. Except subsection, and revoke the exemption as monitors their use. for pleadings filed with WRO and appropriate. The regulation at 7 CFR 6.34(a) states: DEFO, whether to participate in Board ‘‘Whenever a historical license proceedings as an e-filer will continue William D. Spencer, (Appendix 1) is not issued to an to be voluntary. We note, however, that Clerk of the Board. applicant pursuant to the provisions of should the pilot program in WRO and [FR Doc. 2011–26315 Filed 10–12–11; 8:45 am] § 6.23, is permanently surrendered or is DEFO prove to be successful, the Board BILLING CODE 7400–01–P revoked by the Licensing Authority, the
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amount of such license will be Issued at Washington, DC, the 22nd day of Authority: Additional U.S. Notes 6, 7, 8, transferred to Appendix 2.’’ Section September 2011. 12, 14, 16–23 and 25 to Chapter 4 and 6.34(b) provides that the cumulative Ronald Lord, General Note 15 of the Harmonized Tariff annual transfers will be published in the Licensing Authority. Schedule of the United States (19 U.S.C. 1202), Pub. L. 97–258, 96 Stat. 1051, as Federal Register. Accordingly, this Accordingly, 7 CFR part 6 is amended amended (31 U.S.C. 9701), and secs. 103 and document sets forth the revised as follows: 404, Pub. L. 103–465, 108 Stat. 4819 (19 Appendices for the 2011 tariff-rate quota U.S.C. 3513 and 3601). year. PART 6—IMPORT QUOTAS AND FEES ■ 2. Appendices 1, 2 and 3 to Subpart— List of Subjects in 7 CFR Part 6 Dairy Tariff-Rate Import Quota ■ 1. The authority citation for part 6, Licensing are revised to read as follows: Agricultural commodities, Cheese, Subpart—Dairy Tariff-Rate Import Dairy products, Imports, Reporting and Quota Licensing continues to read as Appendices 1–3 to Subpart—Dairy recordkeeping requirements. follows: Tariff-Rate Import Quota Licensing
ARTICLES SUBJECT TO: APPENDIX 1, HISTORICAL LICENSES; APPENDIX 2, NONHISTORICAL LICENSES; AND APPENDIX 3, DESIGNATED IMPORTER LICENSES FOR QUOTA YEAR 2011 [Quantities in kilograms]
Sum of Appendix 3 Harmonized Article by additional U.S. note number Appendix 1 Appendix 2 Appendix tariff and country of origin 1 & 2 Tokyo R. Uruguay R. schedule
NON-CHEESE ARTICLES
BUTTER (G-NOTE 6) ...... 5,096,498 1,880,502 6,977,000 ...... 6,977,000 EU–25 ...... 75,459 20,702 96,161 ...... New Zealand ...... 110,045 40,548 150,593 ...... Other Countries...... 43,017 30,918 73,935 ...... Any Country ...... 4,867,977 1,788,334 6,656,311 ...... DRIED SKIM MILK (K-NOTE 7) ...... 5,261,000 5,261,000 ...... 5,261,000 Australia ...... 600,076 600,076 ...... Canada ...... 219,565 219,565 ...... Any Country ...... 4,441,359 4,441,359 ...... DRIED WHOLE MILK (H-NOTE 8) ...... 3,175 3,318,125 3,321,300 ...... 3,321,300 New Zealand...... 3,175 ...... 3,175 ...... Any Country ...... 3,318,125 3,318,125 ...... DRIED BUTTERMILK/WHEY (M-NOTE 12) ...... 224,981 224,981 ...... 224,981 Canada ...... 161,161 161,161 ...... New Zealand ...... 63,820 63,820 ...... BUTTER SUBSTITUTES CONTAINING OVER 45 PERCENT OF BUTTERFAT AND/OR BUTTER OIL (SU-NOTE 14) ...... 6,080,500 6,080,500 ...... 6,080,500 Any Country ...... 6,080,500 6,080,500 ......
TOTAL: NON-CHEESE ARTI- CLES ...... 5,099,673 16,765,108 21,864,781 ...... 21,864,781
CHEESE ARTICLES
CHEESE AND SUBSTITUTES FOR CHEESE (EXCEPT: SOFT RIPENED COW’S MILK CHEESE; CHEESE NOT CONTAINING COW’S MILK; CHEESE (EXCEPT COTTAGE CHEESE) CONTAINING 0.5 PER- CENT OR LESS BY WEIGHT OF BUTTERFAT; AND, ARTICLES WITH- IN THE SCOPE OF OTHER IMPORT QUOTAS PROVIDED FOR IN THIS SUBCHAPTER) (OT-NOTE 16) ...... 21,557,089 9,912,642 31,469,731 9,661,128 7,496,000 48,626,859 Argentina ...... 7,690 ...... 7,690 92,310 ...... 100,000 Australia ...... 535,628 5,542 541,170 758,830 1,750,000 3,050,000 Canada ...... 1,013,777 127,223 1,141,000 ...... 1,141,000 Costa Rica ...... 1,550,000 1,550,000 EU–25 ...... 15,775,975 7,491,681 23,267,656 1,132,568 3,446,000 27,846,224 Of which Portugal is ...... 65,838 63,471 129,309 223,691 ...... 353,000 Israel ...... 79,696 ...... 79,696 593,304 ...... 673,000 Iceland ...... 294,000 ...... 294,000 29,000 ...... 323,000 New Zealand ...... 2,964,645 1,850,827 4,815,472 6,506,528 ...... 11,322,000 Norway ...... 124,982 25,018 150,000 ...... 150,000 Switzerland ...... 593,952 77,460 671,412 548,588 500,000 1,720,000 Uruguay ...... 250,000 250,000 Other Countries ...... 100,906 100,729 201,635 ...... 201,635
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ARTICLES SUBJECT TO: APPENDIX 1, HISTORICAL LICENSES; APPENDIX 2, NONHISTORICAL LICENSES; AND APPENDIX 3, DESIGNATED IMPORTER LICENSES FOR QUOTA YEAR 2011—Continued [Quantities in kilograms]
Sum of Appendix 3 Harmonized Article by additional U.S. note number Appendix 1 Appendix 2 Appendix tariff and country of origin 1 & 2 Tokyo R. Uruguay R. schedule
Any Country ...... 300,000 300,000 ...... 300,000 BLUE-MOLD CHEESE (EXCEPT STIL- TON PRODUCED IN THE UNITED KINGDOM) AND CHEESE AND SUB- STITUTES FOR CHEESE CON- TAINING, OR PROCESSED FROM, BLUE-MOLD CHEESE (B-NOTE 17) .. 2,285,946 195,055 2,481,001 ...... 430,000 2,911,001 Argentina ...... 2,000 ...... 2,000 ...... 2,000 EU–25 ...... 2,283,946 195,054 2,479,000 ...... 350,000 2,829,000 Chile ...... 80,000 80,000 Other Countries ...... 1 1 ...... 1 CHEDDAR CHEESE, AND CHEESE AND SUBSTITUTES FOR CHEESE CONTAINING, OR PROCESSED FROM, CHEDDAR CHEESE (C-NOTE 18) ...... 2,799,576 1,484,280 4,283,856 519,033 7,620,000 12,422,889 Australia ...... 902,462 82,037 984,499 215,501 1,250,000 2,450,000 Chile ...... 220,000 220,000 EU–25 ...... 52,404 210,596 263,000 ...... 1,050,000 1,313,000 New Zealand...... 1,742,165 1,054,303 2,796,468 303,532 5,100,000 8,200,000 Other Countries ...... 102,545 37,344 139,889 ...... 139,889 Any Country ...... 100,000 100,000 ...... 100,000 AMERICAN-TYPE CHEESE, INCLUD- ING COLBY, WASHED CURD AND GRANULAR CHEESE (BUT NOT IN- CLUDING CHEDDAR) AND CHEESE AND SUBSTITUTES FOR CHEESE CONTAINING OR PROCESSED FROM SUCH AMERICAN-TYPE CHEESE (A-NOTE 19) ...... 2,711,009 454,544 3,165,553 357,003 ...... 3,522,556 Australia ...... 771,136 109,862 880,998 119,002 ...... 1,000,000 EU–25 ...... 149,683 204,317 354,000 ...... 354,000 New Zealand...... 1,639,549 122,450 1,761,999 238,001 ...... 2,000,000 Other Countries ...... 150,641 17,915 168,556 ...... 168,556 EDAM AND GOUDA CHEESE, AND CHEESE AND SUBSTITUTES FOR CHEESE CONTAINING, OR PROC- ESSED FROM, EDAM AND GOUDA CHEESE (E-NOTE 20) ...... 5,128,658 477,744 5,606,402 ...... 1,210,000 6,816,402 Argentina ...... 110,495 14,505 125,000 ...... 110,000 235,000 EU–25 ...... 4,899,083 389,917 5,289,000 ...... 1,100,000 6,389,000 Norway ...... 114,318 52,682 167,000 ...... 167,000 Other Countries ...... 4,762 20,640 25,402 ...... 25,402 ITALIAN-TYPE CHEESES, MADE FROM COW’S MILK, (ROMANO MADE FROM COW’S MILK, REGGIANO, PARMESAN, PROVOLONE, PROVOLETTI, SBRINZ, AND GOYA-NOT IN ORIGI- NAL LOAVES) AND CHEESE AND SUBSTITUTES FOR CHEESE CON- TAINING, OR PROCESSED FROM, SUCH ITALIAN-TYPE CHEESES, WHETHER OR NOT IN ORIGINAL LOAVES (D-NOTE 21) ...... 6,404,899 1,115,648 7,520,547 795,517 5,165,000 13,481,064 Argentina ...... 3,913,007 212,476 4,125,483 367,517 1,890,000 6,383,000 EU–25 ...... 2,491,892 890,108 3,382,000 ...... 2,025,000 5,407,000 Romania ...... 500,000 500,000 Uruguay ...... 428,000 750,000 1,178,000 Other Countries ...... 13,064 13,064 ...... 13,064 SWISS OR EMMENTHALER CHEESE OTHER THAN WITH EYE FORMA- TION, GRUYERE-PROCESS CHEESE AND CHEESE AND SUB- STITUTES FOR CHEESE CON- TAINING, OR PROCESSED FROM, SUCH CHEESES (GR-NOTE 22) ...... 5,325,713 1,325,601 6,651,314 823,519 380,000 7,854,833
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ARTICLES SUBJECT TO: APPENDIX 1, HISTORICAL LICENSES; APPENDIX 2, NONHISTORICAL LICENSES; AND APPENDIX 3, DESIGNATED IMPORTER LICENSES FOR QUOTA YEAR 2011—Continued [Quantities in kilograms]
Sum of Appendix 3 Harmonized Article by additional U.S. note number Appendix 1 Appendix 2 Appendix tariff and country of origin 1 & 2 Tokyo R. Uruguay R. schedule
EU–25 ...... 4,056,523 1,095,471 5,151,994 393,006 380,000 5,925,000 Switzerland ...... 1,235,692 183,795 1,419,487 430,513 ...... 1,850,000 Other Countries...... 33,498 46,335 79,833 ...... 79,833 CHEESE AND SUBSTITUTES FOR CHEESE, CONTAINING 0.5 PER- CENT OR LESS BY WEIGHT OF BUTTERFAT (EXCEPT ARTICLES WITHIN THE SCOPE OF OTHER TARIFF-RATE QUOTAS PROVIDED FOR IN THIS SUBCHAPTER), AND MARGARINE CHEESE (LF-NOTE 23) 1,842,566 2,582,342 4,424,918 1,050,000 ...... 5,474,908 EU–25 ...... 1,842,566 2,582,341 4,424,907 ...... 4,424,907 Israel ...... 50,000 ...... 50,000 New Zealand ...... 1,000,000 ...... 1,000,000 Other Countries ...... 1 1 ...... 1 SWISS OR EMMENTHALER CHEESE WITH EYE FORMATION (SW-NOTE 25) ...... 15,607,214 6,690,117 22,297,331 9,557,945 2,620,000 34,475,276 Argentina ...... 9,115 9,115 70,885 ...... 80,000 Australia ...... 209,698 ...... 209,698 290,302 ...... 500,000 Canada ...... 70,000 ...... 70,000 EU–25 ...... 11,186,762 5,290,066 16,476,828 4,003,172 2,420,000 22,900,000 Iceland ...... 149,999 ...... 149,999 150,001 ...... 300,000 Israel ...... 27,000 ...... 27,000 ...... 27,000 Norway ...... 3,187,264 468,046 3,655,310 3,227,690 ...... 6,883,000 Switzerland ...... 786,906 897,199 1,684,105 1,745,895 200,000 3,630,000 Other Countries...... 59,585 25,691 85,276 ...... 85,276
TOTAL: CHEESE ARTICLES ... 63,662,670 24,237,973 87,900,653 22,764,145 24,921,000 135,585,788
TOTAL: CHEESE ARTI- CLES & NON-CHEESE ARTICLES ...... 68,762,343 41,003,081 ...... 22,764,145 24,921,000 157,450,569
[FR Doc. 2011–26480 Filed 10–12–11; 8:45 am] to withstand to prevent undue risk to 301–415–4737, or by e-mail to BILLING CODE 3410–10–P the health and safety of the public. [email protected]. • Federal Rulemaking Web Site: DATES: October 13, 2011. Public comments and supporting NUCLEAR REGULATORY ADDRESSES: You can access publicly materials related to this guide can be COMMISSION available documents related to this found at http://www.regulations.gov by regulatory guide using the following searching on Docket ID NRC–2010– 10 CFR Parts 50 and 52 methods: 0288. [NRC–2010–0288] • NRC’s Public Document Room Regulatory guides are not (PDR): The public may examine and copyrighted, and Commission approval Design-Basis Hurricane and Hurricane have copied, for a fee, publicly available is not required to reproduce them. Missiles for Nuclear Power Plants documents at the NRC’s PDR, O1–F21, FOR FURTHER INFORMATION CONTACT: One White Flint North, 11555 Rockville Robert Carpenter, U.S. Nuclear AGENCY: Nuclear Regulatory Pike, Rockville, Maryland 20852. Regulatory Commission, Washington, Commission. • DC 20555–0001, telephone: 301–251– ACTION: Regulatory guide; issuance. NRC’s Agencywide Documents Access and Management System 7483 or e-mail SUMMARY: The U.S. Nuclear Regulatory (ADAMS): Publicly available documents [email protected]. Commission (NRC or the Commission) created or received at the NRC are SUPPLEMENTARY INFORMATION: is issuing a new regulatory guide, (RG) available online in the NRC Library at 1.221, ‘‘Design-Basis Hurricane and http://www.nrc.gov/reading-rm/ I. Introduction Hurricane Missiles for Nuclear Power adams.html. From this page, the public The NRC is issuing a new guide in the Plants.’’ This regulatory guide provides can gain entry into ADAMS, which agency’s ‘‘Regulatory Guide’’ series. licensees and applicants with new provides text and image files of the This series was developed to describe guidance that the staff of the NRC NRC’s public documents. If you do not and make available to the public considers acceptable for use in selecting have access to ADAMS or if there are information such as methods that are the design-basis hurricane and design- problems in accessing the documents acceptable to the NRC staff for basis hurricane-generated missiles that a located in ADAMS, contact the NRC’s implementing specific parts of the nuclear power plant should be designed PDR reference staff at 1–800–397–4209, agency’s regulations, techniques that the
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staff uses in evaluating specific SMALL BUSINESS ADMINISTRATION SUPPLEMENTARY INFORMATION: This problems or postulated accidents, and direct final rule contains several data that the staff needs in its review of 13 CFR Parts 108, 120, 123, and 125 conforming amendments to SBA applications for permits and licenses. regulations resulting from the Small RG 1.221 was issued with a temporary RIN 3245–AG15 Business Jobs Act of 2010 (SBJA), Public Law 111–240, which was enacted on identification as Draft Regulatory Guide, Small Business Jobs Act: September 27, 2010, SBA is making DG–1247. This regulatory guide Implementation of Conforming and these regulatory amendments and other provides licensees and applicants with Technical Amendments technical conforming changes to mirror new guidance that the staff of the NRC current statutory provisions and avoid AGENCY: considers acceptable for use in selecting U.S. Small Business public confusion or possible the design-basis hurricane and design- Administration. misinterpretations of SBA’s programs. basis hurricane-generated missiles that a ACTION: Direct final rule. Since these are conforming nuclear power plant should be designed amendments, with no extraneous SUMMARY: This direct final rule contains to withstand to prevent undue risk to interpretation or other expanded various amendments conforming SBA the health and safety of the public. This materials, SBA expects no significant regulations to changes made by the guidance applies to the contiguous adverse comments. Based on that fact, Small Business Jobs Act of 2010 to United States but does not address the SBA has decided to proceed with a several SBA programs, including determination of the design-basis direct final rule giving the public 30 business lending, disaster lending, and hurricane and hurricane missiles for days to comment. If SBA receives a contract bundling. This rule also makes sites located along the Pacific coast or significant adverse comment during the additional conforming changes to in Alaska, Hawaii, or Puerto Rico; the comment period, SBA will withdraw ensure that the regulations governing NRC will evaluate such determinations the sections of the rule receiving the certain fees payable in the business loan on a case-by-case basis. This guide also significant adverse comment, and programs are consistent with the related does not identify the specific structures, publish them in a proposed rule. statutory authority in the Small systems, and components that should be To minimize confusion to the reader, Business Act. designed to withstand the effects of the the Supplementary Information section design-basis hurricane or should be DATES: This rule is effective on is organized by sequential order of SBJA protected from hurricane-generated November 28, 2011 without further sections, followed by the additional missiles and remain functional. Nor action, unless significant adverse changes that are not directly related to does this guide address other externally comment is received by November 14, the SBJA amendments but are necessary generated hazards, such as aviation 2011. If significant adverse comment is for accuracy and consistency with the received, SBA will publish a timely crashes, nearby accidental explosions Small Business Act. withdrawal of the affected sections of resulting in blast overpressure levels the rule in the Federal Register. A. Small Business Jobs Act and explosion-borne debris and Amendments missiles, and turbine missiles. ADDRESSES: You may submit comments, identified by RIN 3245–AG15, by one of Section 1111. Section 7(a) Business II. Further Information the following methods: (1) Federal Loans eRulemaking Portal: http:// Section 1111 of the SBJA temporarily In August 2010, DG–1247 was www.regulations.gov; following the published with a public comment increased the maximum guarantee instructions for submitting comments; percentages for 7(a) business loans until period of 60 days from the issuance of or (2) Mail/Hand Delivery/Courier: John January 1, 2011. These temporary the guide. The public comment period Russell, Office of General Counsel, 409 changes do not need to be reflected in closed on November 5, 2010. Electronic Third Street, SW., Mail Code 2221, the regulations. Section 1111 also copies of Regulatory Guide 1.221 are Washington, DC 20416. permanently increased the maximum available through the NRC’s public Web SBA will post all comments to this guaranteed portion and maximum loan site under ‘‘Regulatory Guides’’ at rule on http://www.regulations.gov. If amount for 7(a) business loans. As a http://www.nrc.gov/reading-rm/doc- you wish to submit confidential result of this change, section 7(a)(3) of collections/ and through the NRC’s business information (CBI) as defined in the Small Business Act now reads: ‘‘No Agencywide Documents Access and the User Notice at http:// loan shall be made under this Management System (ADAMS) at www.regulations.gov, you must submit subsection—(A) if the total amount http://www.nrc.gov/reading-rm/ such information to U.S. Small Business outstanding and committed (by adams.html, under Accession No. Administration, John Russell, Office of participation or otherwise) to the ML110940300. The regulatory analysis General Counsel, 409 Third Street, SW., borrower from the business loan and may be found in ADAMS under Mail Code 2221, Washington, DC 20416, investment fund established by this Act Accession No. ML110940303. Staff’s or send an e-mail to would exceed $3,750,000 (or if the gross responses to public comments on DG– [email protected]. You should loan amount would exceed $5,000,000), 1247 are available under ML110940334. highlight the information that you except as provided for international consider to be CBI and explain why you trade loans, which have a different Dated at Rockville, Maryland, this 3rd day believe SBA should hold this of October 2011. limit.’’ 15 U.S.C. § 636(a)(3)(A). SBA is information as confidential. SBA will conforming three SBA regulations to For the Nuclear Regulatory Commission. review your information and determine this statutory change as follows: (1) Thomas H. Boyce, whether it will make the information § 120.151, What is the statutory limit for Chief, Regulatory Guide Development Branch, public or not. total loans to a Borrower?, to reflect that Division of Engineering, Office of Nuclear FOR FURTHER INFORMATION CONTACT: John the maximum guaranteed amount is Regulatory Research. C. Russell, Jr., Office of General now $3,750,000 and the maximum loan [FR Doc. 2011–26420 Filed 10–12–11; 8:45 am] Counsel, (202) 205–6642, e-mail: amount is $5,000,000; (2) § 120.210, BILLING CODE 7590–01–P [email protected]. What percentage of a loan may SBA
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guarantee?, to remove an outdated incorporates the parameters of the more projected in the participation agreement effective date of the maximum guaranty fully articulated public policy goal. of the covered New Markets Venture percentages; and (3) § 120.390, Section 1113. Maximum Loan Amounts Capital.’’ 15 U.S.C. 689. The SBJA Revolving Credit, to reflect that the Under Microloan Program defines the term ‘‘covered New Markets maximum guarantee and loan amount Venture Capital Company’’ as a are the same under CapLines as other Section 1113 of the SBJA amended company granted approval by the SBA the maximum loan limits for the 7(a) business loans and to include a Administrator on or after March 1, 2002, Microloan Program by raising the cross reference to § 120.151. that has obtained financing from the amount of a loan that a Microloan Section 1112. Maximum Loan Amounts Intermediary can make to a borrower Administrator. We are conforming the Under 504 Program from $35,000 to $50,000, as well as the regulation to this statutory change by Section 1112 of the SBJA amended amount of a loan that the Microloan amending current SBA regulation, several maximum loan amounts for the Intermediary can receive from the SBA § 108.740, Portfolio Diversification Certified Development Company from $3,500,000 to $5,000,000. SBA is (‘‘overline’’ limitation). Based on the Program (also known as the 504 revising seven of its regulations to leverage ratio currently applicable in the Program). Due to these amendments, the conform to these statutory changes: (1) New Markets Venture Capital (NMVC) Small Business Investment Act § 120.2, Description of the Business program, the SBJA effectively increased provision now reads: ‘‘(A) In General. Loan Programs; (2) § 120.10, Definitions; the overline limit for existing NMVC Loans made by the Administration (3) § 120.701, Definitions; (4) § 120.702, companies from 20% to 25% of under this section shall be limited to— Are there limitations on who can be an regulatory capital, which will allow (i) $5,000,000 for each small business Intermediary or on where an these companies to invest a higher concern if the loan proceeds will not be Intermediary may operate?; (5) percentage of their capital in a single directed toward a goal or project § 120.706, What are the terms and company or group of affiliated described in clause (ii), (iii), (iv) or (v); conditions of an SBA loan to an companies. SBA intends that an NMVC (ii) $5,000,000 for each small business Intermediary?; (6) § 120.707, What company’s calculation of an overline concern if the loan proceeds will be conditions apply to loans by limitation will retain the same directed toward 1 or more of the public Intermediaries to Microloan borrowers?; adjustments to regulatory capital that policy goals described under section and (7) § 120.714, How are grants made are present in the current NMVC 501(d)(3); (iii) $5,500,000 for each to non-lending technical assistance program regulations. project of a small manufacturer; (iv) providers (NTAP)?. $5,500,000 for each project that reduces In addition, SBA is making one Section 1117. Sale of 7(a) Loans in the borrower’s energy consumption by technical change to the regulations Secondary Market at least 10 percent; and (v) $5,500,000 governing eligibility for grants to for each project that generates Microloan Intermediaries. The second Section 1117 of the SBJA amends renewable energy or renewable fuels, sentence of paragraph (b)(2) of § 120.712 SBA’s 7(a) loan program secondary such as biodiesel or ethanol states: ‘‘Intermediaries may not enter market authority by providing: ‘‘If the production.’’ 15 U.S.C. 696(2)(A)(i–v). into third party contracts for the amount of the guaranteed portion of any With respect to (iii) above, a small provision of technical assistance to loan under section 7(a) is more than manufacturer, as defined in the Small program clients.’’ This language is $500,000, the Administrator shall, upon Business Act, must have all of its inconsistent with paragraph (e) of that request of a pool assembler, divide the production facilities located in the section, which states: ‘‘An Intermediary loan guarantee into increments of United States. 15 U.S.C. 696(2)(B). SBA may use no more than 25 percent of the $500,000 and 1 increment of any is conforming § 120.931, 504 Loan grant funds it receives from SBA for remaining amount less than $500,000, Limits, to this statutory change, which contracts with third parties for the latter in order to permit the maximum amount substantially increases the loan limits to provide technical assistance to of any loan in a pool to be not more than for all 504 Program loans. Microloan borrowers.’’ Paragraph (e), $500,000. Only 1 increment of any loan In implementing the loan limit for which was added to § 120.712 in 2001 renewable energy or renewable fuels to implement statutory changes, reflects guarantee divided under this paragraph projects, SBA noted that 15 U.S.C. current SBA policy to allow may be included in the same pool. 696(2)(A)(v) was enacted at the same Intermediaries to use up to 25 percent Increments of loan guarantees to time as 15 U.S.C. 695(d)(3)(K), which of grant funds for contracts with third different borrowers that are divided describes one of the public policy parties. Therefore, SBA is removing the under this paragraph may be included objectives of the 504 Program as projects inconsistent sentence in paragraph in the same pool.’’ 15 U.S.C. 634(g)(6). that achieve ‘‘plant, equipment and (b)(2). SBA is revising three regulations to process upgrades of renewable energy conform to this statutory change: sources such as the small-scale Section 1115. New Markets Venture § 120.600(a), Definitions; § 120.601, SBA production of energy for individual Capital Company Investment Secondary Market; and § 120.611, Pools Limitations buildings or communities consumption, backing Pool Certificates. The purpose commonly known as micropower, or Section 1115 of the SBJA provides of this statutory provision is to allow renewable fuels producers including that ‘‘except to the extent approved by participants in the secondary market, biodiesel and ethanol producers.’’ It is the Administrator, a covered New specifically pool assemblers, to split the SBA’s view that the loan limit set by 15 Markets Venture Capital Company may guaranteed portion of individual 7(a) U.S.C. 696(2)(A)(v) was intended by not acquire or issue commitments for loans into increments of $500,000 and Congress to accord with the securities under this title for any single one increment of less than $500,000. corresponding public policy goal set enterprise in an aggregate amount equal SBA is in the process of revising SBA forth in 15 U.S.C. 695(d)(3)(K). to more than 10 percent of the sum of— Forms 1086 and 1088, as well as the Accordingly, the regulatory provision (A) the regulatory capital of the covered form of Individual Certificate, to reflect implementing the loan limit for New Markets Venture Capital Company; renewable energy or renewable fuels and (B) the total amount of leverage this new provision.
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Section 1119. SBA Secondary Market added a provision: ‘‘Participation in which the head of a Federal agency Guarantee Authority International Trade Loan—In an submits data certifications to the Section 1119 of the SBJA extends the agreement to participate in a loan on a Administrator for Federal Procurement authorization for the SBA Secondary deferred basis under paragraph (16), the Policy, the head of the Federal agency Market Guarantee Program for First Lien participation by the Administration may shall publish on the Web site of the not exceed 90 percent.’’ 15 U.S.C. Federal agency a list and rationale for Position 504 Loan Pools from February 636(a)(2)(E). The International Trade any bundled contract for which the 17, 2011 to the date ‘‘two years after the Loan Program also was amended to Federal agency solicited bids or that was date of the first sale of a pool of first lien allow such loans to be used to assist awarded by the Federal agency.’’ 15 504 loans guaranteed under this section concerns engaged in or adversely U.S.C. 644(q)(2)(B). SBA is conforming to a third-party investor’’. The new affected by international trade to one regulation to this statutory change: expiration date is, therefore, September improve their competitive position ‘‘by § 125.2, Prime Contracting Assistance. 23, 2012. We are conforming one SBA providing working capital’’ and to The purpose of this statutory provision regulation to this statutory change: expand the use of loan proceeds for is to help reduce the practice of contract § 120.1701, Program purpose. refinancing to ‘‘include any debt that bundling. Requiring agencies to post a Section 1132. Public Policy Goals qualifies for refinancing under any other list of all bundled acquisitions and the provision of this subsection.’’ 15 U.S.C. rationale for bundling the acquisition Section 1132 of the SBJA adds a new 636(a)(16)(A)(ii–iii). The collateral holds the agency accountable to the public policy goal for the Certified required to be provided by borrowers of public for its actions. Development Company Program. The International Trade Loans was also new public policy goal is ‘‘reduction of Section 1501. Aquaculture Business changed. The law now allows for such rates of unemployment in labor surplus Disaster Assistance loans to ‘‘be secured by a second lien on areas, as such areas are determined by the property or equipment financed by Section 1501 of the SBJA provides the Secretary of Labor.’’ 15 U.S.C. the loan or on other assets of the small SBA new authority to make certain 695(d)(3)(L). We are conforming one business concern, if the Administrator types of disaster loans to aquaculture regulation to this statutory change: determines the lien provides adequate enterprises. Prior to this statutory § 120.862, Other economic development assurance of the payment of the loan.’’ change, aquaculture enterprises were objectives. This means that a project 15 U.S.C. 636(a)(16)(B)(ii). SBA is ineligible for all SBA disaster loans. meeting this new public policy goal amending four existing regulations for Section 1501 provides that SBA may objective can qualify for a 504 loan in the International Trade Loan program provide economic injury disaster loans an amount up to $5,000,000. It also and adding one new regulation to reflect to aquaculture enterprises that are small means that the project can be financed these statutory changes: (1) § 120.346, businesses. SBA is conforming one by the 504 loan even if the subject Eligiblity, to delete restrictive language regulation to this statutory change: project does not create or retain jobs regarding the use of IT loan proceeds § 123.300, Is my business eligible to pursuant to § 120.861 provided that the that is no longer applicable; (2) apply for an economic injury disaster CDC’s overall portfolio, including the § 120.347, Use of Proceeds, to reflect loan? subject loan, meets or exceeds the CDC’s that IT loan proceeds may now be used B. Other Technical Amendments required Job Opportunity average. for working capital and to refinance In addition to the SBJA amendments, Section 1206. International Trade additional debt; (3) § 120.348, Amount SBA believes that additional changes Finance Programs of Loan and Guarantee, to reflect the new maximum loan amount and the should be made to the business loan Section 1206 of the SBJA made new maximum guaranty amount for IT program regulations in § 120.220, Fees changes to SBA’s International Trade, loans; and (4) new § 120.349, Collateral, that Lender Pays SBA, to conform to the Export Working Capital, and Export to reflect the new collateral statutory provisions in section Express Loan Programs. This direct final requirements for IT loans. 7(a)(18)(A) and section 7(a)(23)(A) of the rule addresses the changes made by Finally, section 1206 of the SBJA Small Business Act. 15 U.S.C. Section 1206 to these programs, except amended The Export Working Capital 636(a)(18)(A) and (23)(A). First, with for the Export Express Loan Program, (EWCP) Loan Program by increasing the respect to the guarantee fees authorized which will be the subject of a separate maximum loan amount to $5,000,000 by section 7(a)(18(A)(i) through (iii), rulemaking incorporating the now (15 U.S.C. 636(a)(14)(B)(i)) and by SBA is amending the regulations at permanent Export Express Loan providing that the guaranty amount for § 120.220(a)(1)(i) through (a)(1)(iii) to Program in the regulations for the first EWCP loans shall be 90 percent (15 accurately reflect the limitations time. SBA’s International Trade Loan U.S.C. 636(a)(2)(D)). SBA is conforming provided in the Small Business Act. The Program was amended by changing the § 120.340, What is the Export Working statutory subsections authorize the maximum loan amount, so that the Capital Program?, to reflect the new collection of guarantee fees in amounts provision now reads: ‘‘No loan shall be maximum loan amount and the new not to exceed certain percentages of the made under this subsection—(B) if the required guaranty amount for EWCP guaranteed portion of the loan. The total amount outstanding and loans. Additionally, SBA is conforming regulations, however, do not reflect the committed (on a deferred basis) solely § 120.130, Restrictions on uses of degree of flexibility provided in the for the purposes provided in paragraph proceeds, to reflect that SBA has statute; rather the regulations state that (16) to the borrower from the business statutory authority to allow EWCP loan the fees are fixed at the percentages loan and investment fund established by proceeds to be used for revolving lines listed. Specifically, for loans that are this Act would exceed $4,500,000 (or if of credit for export purposes. 15 U.S.C. $150,000 or less, section 7(a)(18)(a)(i) the gross loan amount would exceed 636(a)(14)(A). will now require the lender to pay a $5,000,000), of which not more than guarantee fee ‘‘not to exceed 2 percent’’ $4,000,000 may be used for working Section 1312. Leadership and Oversight of the guaranteed portion of the loan. capital, supplies or financings under Section 1312(a) of the SBJA provides Similarly, section 7(a)(18)(A)(ii) will § 7(a)(14) for export purposes.’’ 15 that: ‘‘Rationale for Contract Bundling— now require lenders to pay a guarantee U.S.C. 636(a)(3)(B). Section 1206 also Not later than 30 days after the date on fee ‘‘not to exceed 3 percent’’ of the
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guaranteed portion of a loan that is more burden. The action does not have 13 CFR Part 125 than $150,000, but not more than retroactive or preemptive effect. Government contracts, Government $700,000. Finally, under section Executive Order 13132 procurement, Small businesses, 7(a)(18)(A)(iii) the guarantee fee to be Technical assistance. paid by the lender is ‘‘not to exceed 3.5 For the purposes of Executive Order For the reasons stated in the percent’’ of the guaranteed portion of a 13132, this direct final rule will not preamble, the Small Business loan that is more than $700,000. have substantial, direct effects on the Administration amends 13 CFR parts SBA is also amending § 120.220(a)(1) States, on the relationship between the 108, 120, 123, and 125 as follows: to add the guarantee fee authorized by national government and the States, or section 7(a)(18)(A)(1)(iv). This on the distribution of power and PART 108—NEW MARKETS VENTURE subsection provides that in addition to responsibilities among the various CAPITAL (’’NMVC’’) PROGRAM the fee payable under section levels of government. Therefore, SBA 7(a)(18)(A)(iii), SBA must collect a ■ 1. The authority citation for 13 CFR has determined that this direct final rule part 108 continues to read as follows: ‘‘guarantee fee equal to 0.25 percent of has no federalism implications any portion of the deferred participation warranting preparation of a federalism Authority: 15 U.S.C. 689–689q. share that is more than $1,000,000.’’ assessment. ■ 2. Amend § 108.740 as follows: This particular guarantee fee is ■ a. Revise paragraph (a) introductory Paperwork Reduction Act, 44 U.S.C., currently being assessed on the text; applicable loans consistent with the Ch. 35 ■ b. Redesignate paragraph (a)(2) as (a) statutory authority but was not SBA has determined that this direct (3); and previously codified in the regulations. ■ c. Add new paragraph (a)(2) to read as final rule does not impose additional SBA is also amending § 120.220(f)(1) follows: reporting or recordkeeping requirements to accurately reflect the amount of the annual service fee that is authorized by under the Paperwork Reduction Act, 44 § 108.740 Portfolio diversification (‘‘overline’’ limitation). section 7(a)(23)(A) of the Small Business U.S.C., Chapter 35. (a) Without SBA’s prior written Act. This statutory provision states in Regulatory Flexibility Act, 5 U.S.C. 601– approval, you may provide Financing or part that SBA ‘‘shall assess, collect and 612 retain a fee not to exceed 0.55 percent a Commitment to a Small Business only per year of the outstanding participation The Regulatory Flexibility Act (RFA), if the resulting amount of your aggregate balance of the deferred participation 5 U.S.C. 601, requires administrative outstanding Financings and share of the loan * * *.’’ However, the agencies to consider the effect of their Commitments to such Small Business regulations state that this annual service actions on small entities, including and its Affiliates does not exceed 10 fee must be equal to 0.5 percent of the small businesses. According to the RFA, percent of the sum of: outstanding balance of the guaranteed when an agency issues a rule, the * * * * * portion of each loan. The amendment in agency must prepare an analysis to (2) The total amount of leverage this rule will bring the regulations into determine whether the impact of the projected in your participation conformity with the statutory authority, rule will have a significant economic agreement with SBA; plus and obviate possible misunderstanding impact on a substantial number of small * * * * * and confusion regarding the amount entities. However, the RFA allows an PART 120—BUSINESS LOANS that is due annually on the service fee. agency to certify a rule in lieu of For Fiscal Year 2012, the fees preparing an analysis, if the rulemaking ■ 3. The authority citation for 13 CFR authorized by § 120.220(a)(1) and is not expected to have a significant Part 120 continues to read as follows: § 120.220(f) are set at the maximum impact on a substantial number of small Authority: 15 U.S.C. 634(b)(6), (b)(7), authorized levels. SBA will issue entities. This rule only makes (b)(14), (h), and note, 636(a), (h) and (m), 650, notices to announce any changes in conforming amendments to SBA 687(f), 696(3), and 697(a) and (e); Public Law these fees in the future. regulations to reflect recent legislation, 111–5, 123 Stat. 115, Public Law 111–240, 124 Stat. 2504. Compliance With Executive Orders and does not implement new agency policies. Some of these amendments 12866, 12988, and 13132, the § 120.2 [Amended] Paperwork Reduction Act (44 U.S.C. will affect small entities; however SBA certifies that these amendments will not ■ 4. Amend § 120.2(b) by removing the Ch. 35) and the Regulatory Flexibility number ‘‘25,000,’’ and adding in its Act (5 U.S.C. 601–612) have a significant economic impact on a substantial number of such entities. place the number, ‘‘$50,000.’’ Executive Order 12866 List of Subjects § 120.10 [Amended] The Office of Management and Budget ■ 5. Amend § 120.10 by removing the 13 CFR Part 108 (OMB) has determined that this direct number ‘‘$25,000’’ from the definition final rule does not constitute a Community development, Grant of ‘‘Intermediary’’ and replacing it with significant regulatory action under programs—business, Small businesses. the number ‘‘$50,000.’’ Executive Order 12866. This direct final ■ 6. Amend § 120.130 by revising rule is also not a major rule under the 13 CFR Part 120 paragraph (c) to read as follows: Congressional Review Act. Community development, Exports, § 120.130 Restrictions on uses of Executive Order 12988 Loan programs—business, Small proceeds. This action meets applicable businesses. * * * * * standards set forth in Sections 3(a) and 13 CFR Part 123 (c) Floor plan financing or other 3(b)(2) of Executive Order 12988, Civil revolving line of credit, except under Justice Reform, to minimize litigation, Disaster assistance, Loan programs— § 120.340 or § 120.390; eliminate ambiguity, and reduce business, Small businesses. * * * * *
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§ 120.151 [Amended] § 120.346 Eligibility. all of the guaranteed portion of an ■ 7. Amend § 120.151 as follows: (a) * * * individual 7(a) guaranteed loan ■ (a) Remove the number ‘‘$1,000,000’’ (3) The loan will improve the (Individual Certificate). and add in its place the number applicant’s competitive position. * * * * * ‘‘$3,750,000’’; and * * * * * ■ ■ (b) Remove the number ‘‘$2,000,000’’ 17. Revise § 120.601 to read as ■ 12. Amend § 120.347 by adding a new follows: and add in its place the number sentence at the end to read as follows: ‘‘$5,000,000’’. § 120.601 SBA Secondary Market. § 120.347 Use of proceeds. § 120.210 [Amended] The SBA secondary market * * * The Borrower may also use (‘‘Secondary Market’’) consists of the ■ 8. Amend § 120.210 by removing the proceeds in the refinancing of existing sale of Certificates, representing either a words ‘‘Effective December 21, 2000, indebtedness that is not structured with fractional undivided interest in some or loans’’ from the third sentence and reasonable terms and conditions, all of the guaranteed portion of an adding in its place ‘‘Loans’’. including any debt that qualifies for individual 7(a) guaranteed loan or a ■ 9. Amend § 120.220 as follows: refinancing under 7(a) Loan Program fractional undivided interest in a Pool ■ a. Revise the last sentence in Requirements, and to provide working consisting of the SBA guaranteed paragraph (a)(1), introductory text, to capital. portions of a number of 7(a) guaranteed read as set forth below; ■ 13. Revise § 120.348 to read as ■ loans. Transactions involving interests b. Revise paragraphs (a)(1)(i), (a)(1)(ii), follows: and (a)(1)(iii), and add new paragraph in Pools or the sale of individual (a)(1)(iv), to read as set forth below; and § 120.348 Amount of guarantee. guaranteed portions of loans are ■ governed by the contracts entered into c. Revise the first sentence of The maximum loan amount for any by the parties, SBA’s Secondary Market paragraph (f)(1) to read as set forth one International Trade (IT) loan is Program Guide, and this subpart. See below. $5,000,000. IT loans may receive a sections 5(f), (g), and (h) of the Small maximum guaranty of 90 percent or § 120.220 Fees that Lender pays SBA. Business Act (15 U.S.C. 634(f), (g), and $4,500,000, except that the maximum * * * * * (h)). guaranty amount for any working (a) * * * For a loan with a maturity capital component of an IT loan is ■ 18. Amend § 120.611 by adding a new of more than twelve (12) months, the limited to $4,000,000. To the extent that paragraph (c) to read as follows: guarantee fee is payable as follows: the Borrower has a separate EWCP loan (i) Not more than 2 percent of the § 120.611 Pools backing Pool Certificates. or any other 7(a) loan for working guaranteed portion of a loan if the total * * * * * amount of the loan is not more than capital, the guaranty amount for the $150,000; other loan is counted against the (c) Increments of guaranteed portion. (ii) Not more than 3 percent of the $4,000,000 guaranty limit for the IT If the amount of the guaranteed portion guaranteed portion of a loan if the total loan. of an individual 7(a) guaranteed loan is amount of the loan is more than ■ 14. Add new § 120.349 to read as more than $500,000, a Pool Assembler $150,000 but not more than $700,000; follows: may elect to divide the guaranteed (iii) Except as provided in paragraph portion into increments of $500,000 and (a)(1)(iv) of this section, not more than § 120.349 Collateral. one increment of any remaining amount 3.5 percent of the guaranteed portion of Each IT loan must be secured either less than $500,000, in order to permit a loan if the total amount of the loan is by a first lien position or first mortgage the maximum amount of any guaranteed more than $700,000; and on the property or equipment financed portion in a Pool to be not more than (iv) An additional 0.25 percent of the by the IT loan or on other assets of the $500,000. Only one increment from a guaranteed portion of a loan if the total Borrower, except that an IT loan may be loan to a specific borrower may be amount of the loan is more than secured by a second lien position on the included in a Pool. property or equipment financed by the $1,000,000. § 120.701 [Amended] * * * * * IT loan or on other assets of the (f) * * * Borrower, if the SBA determines the ■ 19. Amend § 120.701 as follows: second lien position provides adequate (1) In general. Except to the extent ■ a. Remove the word ‘‘Demonstration’’ assurance of the payment of the IT loan. paragraph (f)(2) of this section applies, from the definition of ‘‘Intermediary’’ in the lender shall pay SBA an annual ■ 15. Amend § 120.390(a) by revising paragraph (e); and service fee in an amount not to exceed the third sentence to read as follows: ■ b. Remove the number ‘‘$35,000’’ 0.55 percent of the outstanding balance § 120.390 Revolving credit. from the definition of ‘‘Microloan’’ in of the guaranteed portion of each loan. paragraph (f) and add in its place the *** (a) * * * The maximum guaranteed amount and the maximum loan amount number ‘‘$50,000.’’ * * * * * ■ 10. Amend § 120.340 by adding two are the same under CapLines as other § 120.702 [Amended] new sentences at the end of the 7(a) loans, as stated in § 120.151. ■ 20. Amend § 120.702 by removing the paragraph to read as follows: * * * * * ■ 16. Amend § 120.600 by revising number ‘‘$35,000’’ in paragraph (a)(1) § 120.340 What is the Export Working paragraph (a) to read as follows: and adding in its place the number Capital Program? ‘‘$50,000.’’. * * * The maximum loan amount for § 120.600 Definitions. § 120.706 [Amended] any one EWCP loan is $5,000,000. (a) Certificate is the document the EWCP loans shall receive a guaranty of FTA issues representing either a ■ 21. Amend § 120.706 by removing the 90 percent, not to exceed $4,500,000. beneficial fractional undivided interest number ‘‘$3.5 million’’ in paragraph (a) ■ 11. Amend § 120.346 by revising in a Pool (Pool Certificate), or a and adding in its place the number ‘‘$5 paragraph (a)(3) to read as follows: fractional undivided interest in some or million.’’
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§ 120.707 [Amended] ■ 27. Amend § 120.1701 by revising the DEPARTMENT OF HOMELAND ■ 22. Amend § 120.707 by removing the third sentence to read as follows: SECURITY number ‘‘$35,000’’ each time it appears § 120.1701 Program purpose. in paragraph (b) and adding in its place Coast Guard the number ‘‘$50,000.’’ * * * The Program’s authorization 33 CFR Part 165 ■ 23. Amend § 120.712 by revising expires on September 23, 2012 and the paragraph (b)(2) to read as follows: Administrator may guarantee not more than $3,000,000,000 of pools under this [Docket No. USCG–2011–0939] § 120.712 How does an Intermediary get a authority pursuant to section grant to assist Microloan borrowers? 503(c)(B)(iii) of the Recovery Act, as RIN 1625–AA87 * * * * * amended by section 1119 of the Small (b) * * * Business Jobs Act of 2010. Security Zone; Columbia and (2) Grant monies may be used to Willamette Rivers, Dredge Vessels attend training required by SBA. PART 123—DISASTER LOAN Patriot and Liberty * * * * * PROGRAM AGENCY: Coast Guard, DHS. § 120.714 [Amended] ■ 28. The authority citation for 13 CFR ACTION: Temporary final rule. ■ 24. Amend § 120.714 by removing the part 123 is revised to read as follows: number ‘‘$35,000’’in paragraph (a) and SUMMARY: The Coast Guard is Authority: 15 U.S.C. 632, 634(b)(6), 636(b), establishing a temporary security zone adding in its place the number 636(d), 657n; Pub. L. 102–395, 106 Stat. within 200 yards of the Dredge Vessels ‘‘$50,000’’ 1828, 1864; and Pub. L. 103–75, 107 Stat. ■ Patriot and Liberty while the vessels are 25. Amend § 120.862 as follows: 739; and Pub. L. 106–50, 113 Stat. 245. ■ a. Remove the word ‘‘or’’ at the end underway, anchored, or conducting of paragraph (b)(8); ■ 29. Amend § 123.300 by removing the dredging operations in the vicinity of ■ b. Remove the ‘‘.’’ at the end of word ‘‘and’’ at the end of paragraph Willamette River Mile 2 and Columbia paragraph (b)(9) and add ‘‘; or’’ in its (c)(2); and adding a new paragraph (c)(4) River Mile 105. Entry into this zone is place; and to read as follows: prohibited unless authorized by the ■ c. Add a new paragraph (b)(10) to read Captain of the Port, Columbia River or as follows: § 123.300 Is my business eligible to apply his designated representative. The Coast for an economic injury disaster loan? Guard is establishing this temporary § 120.862 Other economic development * * * * * security zone around the vessels to objectives. provide security during operations and (c) * * * * * * * * this will be done so by prohibiting all (b) * * * (4) Small aquaculture enterprises. persons or vessels from operating within (10) Reduction of rates of * * * * * 200 yards of the vessel. unemployment in labor surplus areas, as DATES: such areas are determined by the This rule is effective from PART 125—GOVERNMENT October 13, 2011, through October 31, Secretary of Labor. CONTRACTING PROGRAMS ■ 26. Revise § 120.931 to read as 2011. The security zone has been follows: enforced with actual notice since from ■ 30. The authority citation for 13 CFR 7 a.m. on October 1, 2011. part 125 continues to read as follows: § 120.931 504 Lending limits. ADDRESSES: Documents indicated in this 504 loan amounts shall be limited to: Authority: 15 U.S.C. 632(p), (q); 634(b)(6); preamble as being available in the (a) An outstanding balance of 637; 644 and 657(f). docket are part of docket USCG–2011– $5,000,000 for each Borrower and its 0939 and are available online by going affiliates if the loan proceeds will not be ■ 31. Amend § 125.2 by adding new to http://www.regulations.gov, inserting directed towards a Project in paragraph paragraph (d)(9) to read as follows: USCG–2011–0939 in the ‘‘Keyword’’ (c) of this section, § 125.2 Prime contracting assistance. box, and then clicking ‘‘Search.’’ They (b) An outstanding balance of are also available for inspection or $5,000,000 for each Borrower and its * * * * * copying at the Docket Management affiliates if one or more of the public (d) * * * Facility (M–30), U.S. Department of policy goals enumerated in § 120.862(b) Transportation, West Building Ground applies to the Project; and (9) Identifying and justifying bundled contracts. Not later than 30 days after Floor, Room W12–140, 1200 New Jersey (c) $5,500,000 for each Project for: Avenue, SE., Washington, DC 20590, (1) Small Manufacturers (NAICS the date on which the head of a Federal agency submits data certifications to the between 9 a.m. and 5 p.m., Monday Codes 31–33) with all production through Friday, except Federal holidays. facilities located in the United States; Administrator for Federal Procurement (2) Reduction of the Borrower’s, or if Policy, the head of the Federal agency FOR FURTHER INFORMATION CONTACT: If the Borrower is an Eligible Passive shall publish on the Web site of the you have questions on this temporary Company, the Operating Company’s Federal agency a list and rationale for rule, call or e-mail BM1 Silvestre Suga energy consumption by at least 10%; or any bundled contract for which the III, Waterways Management Division, (3) Plant, equipment and process Federal agency solicited bids or that was Coast Guard MSU Portland; telephone upgrades of renewable energy sources awarded by the Federal agency. 503–240–9319, e-mail such as the small-scale production of * * * * * [email protected]. If you have energy for individual buildings’ or questions on viewing the docket, call communities’ consumption, commonly Karen G. Mills, Renee V. Wright, Program Manager, known as micropower, or renewable Administrator. Docket Operations, telephone 202–366– fuel producers including biodiesel and [FR Doc. 2011–26236 Filed 10–12–11; 8:45 am] 9826. ethanol producers. BILLING CODE 8025–01–P SUPPLEMENTARY INFORMATION:
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Regulatory Information Regulatory Analyses Ombudsman evaluates these actions The Coast Guard is issuing this We developed this rule after annually and rates each agency’s temporary final rule without prior considering numerous statutes and responsiveness to small business. If you notice and opportunity to comment executive orders related to rulemaking. wish to comment on actions by pursuant to authority under section 4(a) Below we summarize our analyses employees of the Coast Guard, call of the Administrative Procedure Act based on 13 of these statutes or 1–888–REG–FAIR (1–888–734–3247). (APA) (5 U.S.C. 553(b)). This provision executive orders. The Coast Guard will not retaliate against small entities that question or authorizes an agency to issue a rule Regulatory Planning and Review without prior notice and opportunity to complain about this rule or any policy comment when the agency for good This rule is not a significant or action of the Coast Guard. cause finds that those procedures are regulatory action under section 3(f) of Collection of Information ‘‘impracticable, unnecessary, or contrary Executive Order 12866, Regulatory to the public interest.’’ Under 5 U.S.C. Planning and Review, and does not This rule calls for no new collection 553(b)(B), the Coast Guard finds that require an assessment of potential costs of information under the Paperwork good cause exists for not publishing a and benefits under section 6(a)(3) of that Reduction Act of 1995 (44 U.S.C. 3501– notice of proposed rulemaking (NPRM) Order. The Office of Management and 3520. Budget has not reviewed it under that with respect to this rule because to do Federalism so would be contrary to public interest Order. The Coast Guard has made this due to insufficient time in which to determination based on the fact that the A rule has implications for federalism publish an NPRM since the Dredge security zone is limited in duration and under Executive Order 13132, Vessels Patriot and Liberty would have maritime traffic will be able to transit Federalism, if it has a substantial direct around the zones. started their operations on the Columbia effect on State or local governments and and Willamette Rivers by the time the Small Entities would either preempt State law or impose a substantial direct cost of notice could be published and Under the Regulatory Flexibility Act comments taken. compliance on them. We have analyzed (5 U.S.C. 601–612), we have considered this rule under that Order and have Under 5 U.S.C. 553(d)(3), the Coast whether this rule would have a Guard finds that good cause exists for determined that it does not have significant economic impact on a implications for federalism. making this rule effective less than 30 substantial number of small entities. days after publication in the Federal The term ‘‘small entities’’ comprises Unfunded Mandates Reform Act Register. Publishing a NPRM would be small businesses, not-for-profit contrary to public interest since The Unfunded Mandates Reform Act organizations that are independently of 1995 (2 U.S.C. 1531–1538) requires immediate action is necessary to owned and operated and are not safeguard the Dredge Vessels Patriot and Federal agencies to assess the effects of dominant in their fields, and their discretionary regulatory actions. In Liberty from sabotage, other subversive governmental jurisdictions with particular, the Act addresses actions acts, or accidents, and otherwise protect populations of less than 50,000. that may result in the expenditure by a these vessels. The Coast Guard certifies under 5 State, local, or tribal government, in the Background and Purpose U.S.C. 605(b) that this rule will not have a significant economic impact on a aggregate, or by the private sector of The Dredge Vessels Patriot and substantial number of small entities. $100,000,000 (adjusted for inflation) or Liberty will be conducting operations at This rule may affect the following more in any one year. Though this rule Columbia River Mile 105 and entities some of which may be small will not result in such an expenditure, Willamette River Mile 2. This temporary entities: The owners and operators of we do discuss the effects of this rule security zone is necessary to help vessels intending to operate in the area elsewhere in this preamble. ensure the security of these vessels covered by the security zone created by Taking of Private Property while conducting dredging operations. this rule. The security zone will not This will be done by prohibiting all have a significant economic impact on This rule will not cause a taking of persons or vessels from operating near a substantial number of small entities private property or otherwise have the vessels while they are located in the because maritime traffic will be able to taking implications under Executive Columbia or Willamette Rivers. transit around the zone and therefore Order 12630, Governmental Actions and Interference with Constitutionally Discussion of Rule any interruption to navigation is minimal. Protected Property Rights. This rule establishes a temporary Civil Justice Reform security zone around the Dredge Vessels Assistance for Small Entities Patriot and Liberty while they are Under section 213(a) of the Small This rule meets applicable standards anchored, underway, or conducting Business Regulatory Enforcement in sections 3(a) and 3(b)(2) of Executive dredging operations. The security zone Fairness Act of 1996 (Pub. L. 104–121), Order 12988, Civil Justice Reform, to encompasses all waters within 200 we offer to assist small entities in minimize litigation, eliminate yards around the vessels. No person or understanding the rule so that they can ambiguity, and reduce burden. vessel may enter or remain in the better evaluate its effects on them and Protection of Children security zone unless authorized by the participate in the rulemaking process. Captain of the Port, Columbia River or Small businesses may send comments We have analyzed this rule under his designated representative. on the actions of Federal employees Executive Order 13045, Protection of The security zone will be in effect who enforce, or otherwise determine Children from Environmental Health while the Dredge Vessels are operating compliance with, Federal regulations to Risks and Safety Risks. This rule is not in the Columbia and Willamette Rivers the Small Business and Agriculture an economically significant rule and between approximately 7 a.m. on Regulatory Enforcement Ombudsman does not create an environmental risk to October 1, 2011 through October 31, and the Regional Small Business health or risk to safety that may 2011. Regulatory Fairness Boards. The disproportionately affect children.
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Indian Tribal Governments environment. This rule is categorically ENVIRONMENTAL PROTECTION This rule does not have tribal excluded, under figure 2–1, paragraph AGENCY implications under Executive Order (34)(g), of the Instruction. This rule 40 CFR Part 52 13175, Consultation and Coordination involves the establishment of a security with Indian Tribal Governments, zone. An environmental analysis [EPA–R05–OAR–2010–1001; FRL–9478–4] because it does not have a substantial checklist and a categorical exclusion direct effect on one or more Indian determination are available in the Approval and Promulgation of Air tribes, on the relationship between the docket where indicated under Quality Implementation Plans; Indiana; Federal Government and Indian tribes, ADDRESSES. Miscellaneous Metal and Plastic Parts or on the distribution of power and List of Subjects in 33 CFR Part 165 Surface Coating Rules responsibilities between the Federal Harbors, Marine safety, Navigation AGENCY: Environmental Protection Government and Indian tribes. (water), Reporting and recordkeeping Agency (EPA). Energy Effects requirements, Security measures, ACTION: Direct final rule. Waterways. We have analyzed this rule under SUMMARY: EPA is approving a revision to Executive Order 13211, Actions For the reasons discussed in the the Indiana State Implementation Plan Concerning Regulations That preamble, the Coast Guard amends 33 (SIP) submitted by the Indiana Significantly Affect Energy Supply, CFR part 165 as follows: Department of Environmental Distribution, or Use. We have Management (IDEM) on November 24, PART 165—REGULATED NAVIGATION determined that it is not a ‘‘significant 2010. The SIP revision consists of AREAS AND LIMITED ACCESS AREAS energy action’’ under that order because amendments to 326 Indiana it is not a ‘‘significant regulatory action’’ ■ 1. The authority citation for part 165 Administrative Code (IAC) 8–2–1 and under Executive Order 12866 and is not continues to read as follows: 326 IAC 8–2–9, the applicability likely to have a significant adverse effect sections for Indiana’s miscellaneous on the supply, distribution, or use of Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; metal and plastic parts surface coating energy. The Administrator of the Office rules. These rules are approvable of Information and Regulatory Affairs 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of because they satisfy the requirements of has not designated it as a significant Homeland Security Delegation No. 0170.1. the Clean Air Act (CAA) for volatile energy action. Therefore, it does not organic compound (VOC) reasonably require a Statement of Energy Effects ■ 2. Add § 165.T13–197 to read as follows: available control technology (RACT) under Executive Order 13211. rules. Technical Standards § 165.T13–197 Security Zone; Columbia DATES: This direct final rule will be and Willamette Rivers, M/V PATRIOT AND The National Technology Transfer M/V LIBERTY. effective December 12, 2011, unless EPA receives adverse comments by and Advancement Act (NTTAA) (15 (a) Location. The following area is a U.S.C. 272 note) directs agencies to use November 14, 2011. If adverse security zone: All waters within 200 comments are received, EPA will voluntary consensus standards in their yards in all directions of Dredge vessels regulatory activities unless the agency publish a timely withdrawal of the Patriot and Liberty while these vessels direct final rule in the Federal Register provides Congress, through the Office of are operating at Willamette River Mile 2 informing the public that the rule will Management and Budget, with an and Columbia River Mile 105. not take effect. explanation of why using these (b) Regulations. In accordance with standards would be inconsistent with the general regulations in 33 CFR part ADDRESSES: Submit your comments, applicable law or otherwise impractical. 165, subpart D, no person may enter or identified by Docket ID No. EPA–R05– Voluntary consensus standards are remain in the security zone created in OAR–2010–1001, by one of the technical standards (e.g., specifications this section or bring, cause to be following methods: of materials, performance, design, or brought, or allow to remain in the 1. http://www.regulations.gov: Follow operation; test methods; sampling security zone created in this section any the on-line instructions for submitting procedures; and related management vehicle, vessel, or object unless comments. systems practices) that are developed or authorized by the Captain of the Port or 2. E-mail: [email protected]. 3. Fax: (312) 408–2279. adopted by voluntary consensus his designated representative. standards bodies. 4. Mail: Douglas Aburano, Chief, Designated representatives are Coast Control Strategies Section, Air Programs This rule does not use technical Guard personnel authorized by the Branch (AR–18J), U.S. Environmental standards. Therefore, we did not Captain of the Port to grant persons or Protection Agency, 77 West Jackson consider the use of voluntary consensus vessels permission to enter or remain in standards. Boulevard, Chicago, Illinois 60604. the security zone created by this section. 5. Hand Delivery: Douglas Aburano, Environment See 33 CFR part 165, subpart D, for Chief, Control Strategies Section, Air We have analyzed this rule under additional information and Programs Branch (AR–18J), U.S. Department of Homeland Security requirements. Environmental Protection Agency, 77 (c) Enforcement period. The security Management Directive 023–01 and West Jackson Boulevard, Chicago, zone created by this section will be in Commandant Instruction M16475.lD, Illinois 60604. Such deliveries are only effect from 7 a.m. on October 1, 2011, which guide the Coast Guard in accepted during the Regional Office through October 31, 2011. complying with the National normal hours of operation, and special Environmental Policy Act of 1969 Dated: September 28, 2011. arrangements should be made for (NEPA) (42 U.S.C. 4321–4370f), and B.C. Jones, deliveries of boxed information. The have concluded this action is one of a Captain, U.S. Coast Guard, Captain of the Regional Office official hours of category of actions that do not Port, Columbia River. business are Monday through Friday, individually or cumulatively have a [FR Doc. 2011–26413 Filed 10–12–11; 8:45 am] 8:30 a.m. to 4:30 p.m., excluding significant effect on the human BILLING CODE 9110–04–P Federal holidays.
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Instructions: Direct your comments to Branch (AR–18J), Environmental (a)(4) and the applicability provisions in Docket ID No. EPA–R05–OAR–2010– Protection Agency, Region 5, 77 West 326 IAC 8–2–9(a). 1001. EPA’s policy is that all comments Jackson Boulevard, Chicago, Illinois We are publishing this action without received will be included in the public 60604, (312) 886–6052, prior proposal because we view this as docket without change and may be [email protected]. a noncontroversial amendment and anticipate no adverse comments. made available online at http:// SUPPLEMENTARY INFORMATION: However, in the proposed rules section www.regulations.gov, including any Throughout this document whenever of this Federal Register publication, we personal information provided, unless ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean are publishing a separate document that the comment includes information EPA. This supplementary information will serve as the proposal to approve the claimed to be Confidential Business section is arranged as follows: Information (CBI) or other information state plan if relevant adverse written whose disclosure is restricted by statute. I. Background comments are filed. This rule will be Do not submit information that you II. What action is EPA taking? effective December 12, 2011 without III. Statutory and Executive Order Reviews consider to be CBI or otherwise further notice unless we receive relevant protected through http:// I. Background adverse written comments by November 14, 2011. If we receive such comments, www.regulations.gov or e-mail. The On February 24, 2010, at 75 FR 8246, http://www.regulations.gov website is we will withdraw this action before the EPA approved amendments to 326 IAC effective date by publishing a an ‘‘anonymous access’’ system, which 8 into the Indiana SIP to address VOC means EPA will not know your identity subsequent document that will RACT requirements for the Lake and withdraw the final action. All public or contact information unless you Porter County portion of the Chicago- provide it in the body of your comment. comments received will then be Gary-Lake County, IL–IN, 8-hour ozone addressed in a subsequent final rule If you send an e-mail comment directly nonattainment area. These amendments to EPA without going through http:// based on the proposed action. EPA will added limits for miscellaneous metal not institute a second comment period. www.regulations.gov your e-mail and plastic parts surface coating address will be automatically captured Any parties interested in commenting operations, consistent with EPA’s 2008 on this action should do so at this time. and included as part of the comment Control Technique Guideline document that is placed in the public docket and Please note that if EPA receives adverse for Miscellaneous Metal and Plastic comment on an amendment, paragraph, made available on the Internet. If you Parts Coating operations. The State’s submit an electronic comment, EPA or section of this rule and if that intention was to cover operations provision may be severed from the recommends that you include your located only in Lake and Porter name and other contact information in remainder of the rule, EPA may adopt Counties, with the limits specified in as final those provisions of the rule that the body of your comment and with any Subsection 326 IAC 8–2–9(d). However, disk or CD–ROM you submit. If EPA are not the subject of an adverse the applicability section, 326 IAC 8–2– comment. If we do not receive any cannot read your comment due to 9(a) did not clearly state that only Lake technical difficulties and cannot contact comments, this action will be effective and Porter County sources were subject December 12, 2011. you for clarification, EPA may not be to the additional requirements. able to consider your comment. In its November 24, 2010, submittal to III. Statutory and Executive Order Electronic files should avoid the use of EPA, IDEM requested that EPA approve Reviews special characters, any form of amendments to 326 IAC 8–2–1 and 326 Under the CAA, the Administrator is encryption, and be free of any defects or IAC 8–2–9 into the state SIP. required to approve a SIP submission viruses. Specifically, IDEM requested that we that complies with the provisions of the Docket: All documents in the docket approve amendments to the CAA and applicable Federal regulations. are listed in the http:// applicability provisions in 326 IAC 8–2– 42 U.S.C. 7410(k); 40 CFR 52.02(a). www.regulations.gov index. Although 9(a) to clarify that the new VOC limits Thus, in reviewing SIP submissions, listed in the index, some information is in subsection (d) apply only to EPA’s role is to approve state choices, not publicly available, e.g., CBI or other miscellaneous metal and plastic parts provided that they meet the criteria of information whose disclosure is surface coating operations in Lake and the CAA. Accordingly, this action restricted by statute. Certain other Porter Counties. IDEM also requested merely approves state law as meeting material, such as copyrighted material, that we approve amendments to the Federal requirements and does not will be publicly available only in hard general applicability provisions at 326 impose additional requirements beyond copy. Publicly available docket IAC 8–2–1(a)(3) and 326 IAC 8–2–1(a)(4) those imposed by state law. For that materials are available either to clarify that the older (in Indiana’s SIP reason, this action: electronically in http:// prior to February 24, 2010) surface • Is not a ‘‘significant regulatory www.regulations.gov or in hard copy at coating requirements in 326 IAC 8–2 action’’ subject to review by the Office the Environmental Protection Agency, continue to apply to miscellaneous of Management and Budget under Region 5, Air and Radiation Division, 77 metal coating operations outside of Lake Executive Order 12866 (58 FR 51735, West Jackson Boulevard, Chicago, and Porter Counties. The revised rules October 4, 1993); Illinois 60604. This facility is open from were adopted by the Indiana Air • Does not impose an information 8:30 a.m. to 4:30 p.m., Monday through Pollution Control Board on September collection burden under the provisions Friday, excluding Federal holidays. We 1, 2010, and became effective on of the Paperwork Reduction Act (44 recommend that you telephone Steven November 19, 2010. No public U.S.C. 3501 et seq.); Rosenthal, Environmental Engineer, at comments were received at the hearing • Is certified as not having a (312) 886–6052 before visiting the held by the state on September 1, 2010. significant economic impact on a Region 5 office. substantial number of small entities II. What action is EPA taking? FOR FURTHER INFORMATION CONTACT: under the Regulatory Flexibility Act Steven Rosenthal, Environmental EPA is approving the state’s request to (5 U.S.C. 601 et seq.); Engineer, Attainment Planning and amend the general applicability • Does not contain any unfunded Maintenance Section, Air Programs provisions at 326 IAC 8–2–1(a)(3) and mandate or significantly or uniquely
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affect small governments, as described The Congressional Review Act, 5 published in the proposed rules section in the Unfunded Mandates Reform Act U.S.C. 801 et seq., as added by the Small of today’s Federal Register, rather than of 1995 (Pub. L. 104–4); Business Regulatory Enforcement file an immediate petition for judicial • Does not have Federalism Fairness Act of 1996, generally provides review of this direct final rule, so that implications as specified in Executive that before a rule may take effect, the EPA can withdraw this direct final rule Order 13132 (64 FR 43255, August 10, agency promulgating the rule must and address the comment in the 1999); submit a rule report, which includes a proposed rulemaking. This action may • Is not an economically significant copy of the rule, to each House of the not be challenged later in proceedings to regulatory action based on health or Congress and to the Comptroller General enforce its requirements. (See section safety risks subject to Executive Order of the United States. EPA will submit a 307(b)(2).) report containing this action and other 13045 (62 FR 19885, April 23, 1997); List of Subjects in 40 CFR Part 52 required information to the U.S. Senate, • Is not a significant regulatory action the U.S. House of Representatives, and Environmental protection, Air subject to Executive Order 13211 (66 FR the Comptroller General of the United pollution control, Incorporation by 28355, May 22, 2001); States prior to publication of the rule in reference, Intergovernmental relations, • Is not subject to requirements of the Federal Register. A major rule Volatile organic compounds. Section 12(d) of the National cannot take effect until 60 days after it Dated: September 30, 2011. Technology Transfer and Advancement is published in the Federal Register. Act of 1995 (15 U.S.C. 272 note) because Susan Hedman, This action is not a ‘‘major rule’’ as Regional Administrator, Region 5. application of those requirements would defined by 5 U.S.C. 804(2). be inconsistent with the CAA; and Under section 307(b)(1) of the CAA, 40 CFR part 52 is amended as follows: • Does not provide EPA with the petitions for judicial review of this PART 52—[AMENDED] discretionary authority to address, as action must be filed in the United States appropriate, disproportionate human Court of Appeals for the appropriate ■ 1. The authority citation for part 52 health or environmental effects, using circuit by December 12, 2011. Filing a continues to read as follows: practicable and legally permissible petition for reconsideration by the methods, under Executive Order 12898 Administrator of this final rule does not Authority: 42 U.S.C. 7401 et seq. (59 FR 7629, February 16, 1994). affect the finality of this action for the Subpart P—Indiana In addition, this rule does not have purposes of judicial review nor does it tribal implications as specified by extend the time within which a petition ■ 2. In § 52.770 the table in paragraph Executive Order 13175 (65 FR 67249, for judicial review may be filed, and (c) is amended by revising the entry for November 9, 2000), because the SIP is shall not postpone the effectiveness of ‘‘Article 8. Volatile Organic Compound not approved to apply in Indian country such rule or action. Parties with Rules’’ to read as follows: located in the state, and EPA notes that objections to this direct final rule are it will not impose substantial direct encouraged to file a comment in § 52.770 Identification of plan. costs on tribal governments or preempt response to the parallel notice of * * * * * tribal law. proposed rulemaking for this action (c) * * *
EPA-APPROVED INDIANA REGULATIONS
Indiana Indiana citation Subject effective date EPA approval date Notes
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Article 8. Volatile Organic Compound Rules
Rule 1. General Pro- visions: 8–1–0.5 ...... Definitions ...... 10/18/1995 11/3/1999, 64 FR 59642. 8–1–1 ...... Applicability ...... 6/5/1991 3/6/1992, 57 FR 8082. 8–1–2 ...... Compliance methods ...... 12/15/2002 5/5/2003, 68 FR 23604. 8–1–3 ...... Compliance schedules ...... 5/15/2010 4/14/2011, 76 FR 20850. 8–1–4 ...... Testing procedures ...... 7/15/2001 9/11/2002, 67 FR 57515. 8–1–5 ...... Petition for site-specific reasonably avail- 11/10/1988 9/6/1990, 55 FR 36635. able control technology (RACT) plan. 8–1–6 ...... New facilities; general reduction require- 6/24/2006 6/13/2007, 72 FR 32531. ments. 8–1–7 ...... Military specifications ...... 10/27/1982, 47 FR 20586. 8–1–9 ...... General recordkeeping and reporting re- 5/22/1997 6/29/1998, 63 FR 35141. quirements. 8–1–10 ...... Compliance certification, recordkeeping, 5/22/1997 6/29/1998, 63 FR 35141. and reporting requirements for certain coating facilities using compliant coat- ings. 8–1–11 ...... Compliance certification, recordkeeping, 5/22/1997 6/29/1998, 63 FR 35141. and reporting requirements for certain coating facilities using daily-weighted averaging.
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EPA-APPROVED INDIANA REGULATIONS—Continued
Indiana Indiana citation Subject effective date EPA approval date Notes
8–1–12 ...... Compliance certification, recordkeeping, 5/22/1997 6/29/1998, 63 FR 35141. and reporting requirements for certain coating facilities using control devices. Rule 2. Surface Coat- ing Emission Limi- tations: 8–2–1 ...... Applicability ...... 11/19/2010 10/13/11, [Insert page num- ber where the document begins]. 8–2–2 ...... Automobile and light duty truck coating op- 1/2/2010 2/24/2010, 75 FR 8246. erations. 8–2–3 ...... Can coating operations ...... 2/10/1986, 51 FR 4912. 8–2–4 ...... Coil coating operations ...... 10/27/1982, 47 FR 20586. 8–2–5 ...... Paper coating operations ...... 12/3/2009 2/24/2010, 75 FR 8246. 8–2–6 ...... Metal furniture coating operations ...... 12/3/2009 2/24/2010, 75 FR 8246. 8–2–7 ...... Large appliance coating operations ...... 12/3/2009 2/24/2010, 75 FR 8246. 8–2–8 ...... Magnet wire coating operations ...... 10/27/1982, 47 FR 20586. 8–2–9 ...... Miscellaneous metal and plastic parts 11/19/2010 10/13/11, [Insert page num- coating operations. ber where the document begins]. 8–2–10 ...... Flat wood panels; manufacturing oper- 12/3/2009 2/24/2010, 75 FR 8246. ations. 8–2–11 ...... Fabric and vinyl coating ...... 10/23/1988 3/6/1992, 57 FR 8082. 8–2–12 ...... Wood furniture and cabinet coating ...... 4/10/1988 11/24/1990, 55 FR 39141. Rule 3. Organic Sol- vent Degreasing Operations: 8–3–1 ...... Applicability ...... 5/27/1999 9/14/2001, 66 FR 47887. 8–3–2 ...... Cold cleaner operation ...... 10/27/1982, 47 FR 47554. 8–3–3 ...... Open top vapor degreaser operation ...... 10/27/1982, 47 FR 47554. 8–3–4 ...... Conveyorized degreaser operation ...... 10/27/1982, 47 FR 47554. 8–3–5 ...... Cold cleaner degreaser operation and con- ...... 3/6/1992, 57 FR 8082. trol. 8–3–6 ...... Open top vapor degreaser operation and ...... 3/6/1992, 57 FR 8082. control requirements. 8–3–7 ...... Conveyorized degreaser operation and 6/5/1991 3/6/1992, 57 FR 8082. control. 8–3–8 ...... Material requirements for cold cleaning 5/27/1999 9/14/2001, 66 FR 47887. degreasers. Rule 4. Petroleum Sources: 8–4–1 ...... Applicability ...... 5/15/2010 4/14/2011, 76 FR 20850. 8–4–2 ...... Petroleum refineries ...... 1/18/1983, 48 FR 2127. 8–4–3 ...... Petroleum liquid storage facilities ...... 2/10/1986, 51 FR 4912. 8–4–4 ...... Bulk gasoline terminals ...... 1/18/1983, 48 FR 2127. 8–4–5 ...... Bulk gasoline plants ...... 1/18/1983, 48 FR 2127. 8–4–6 ...... Gasoline dispensing facilities ...... 5/15/2010 4/14/2011, 76 FR 20850. 8–4–7 ...... Gasoline transports ...... 11/5/1999 5/31/2002, 67 FR 38006. 8–4–8 ...... Leaks from petroleum refineries; moni- 6/5/1991 3/6/1992, 57 FR 8082. toring; reports. 8–4–9 ...... Leaks from transports and vapor collection 11/5/1999 5/31/2002, 67 FR 38006. systems; records. Rule 5. Miscellaneous Operations: 8–5–1 ...... Applicability of rule ...... 3/22/2007 2/20/2008, 73 FR 9201. 8–5–2 ...... Asphalt paving rules ...... 2/10/1986, 51 FR 4912. 8–5–3 ...... Synthesized pharmaceutical manufacturing 5/18/1990 3/6/1992, 57 FR 8082. operations. 8–5–4 ...... Pneumatic rubber tire manufacturing ...... 1/18/1983, 48 FR 2124. 8–5–5 ...... Graphic arts operations ...... 5/22/1997 6/29/1998, 63 FR 35141. 8–5–6 ...... Fuel grade ethanol production at dry mills 3/22/2007 2/20/2008, 73 FR 9201. Rule 6. Organic Sol- vent Emission Limi- tations: 8–6–1 ...... Applicability of rule ...... 1/18/1983, 48 FR 2124. 8–6–2 ...... Emission limits; exemptions ...... 1/18/1983, 48 FR 2124. Rule 7. Specific VOC Reduction Require- ments for Lake, Porter, Clark, and Floyd Counties:
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EPA-APPROVED INDIANA REGULATIONS—Continued
Indiana Indiana citation Subject effective date EPA approval date Notes
8–7–1 ...... Definitions ...... 1/21/1995 7/5/1995, 60 FR 34856. 8–7–2 ...... Applicability ...... 1/21/1995 7/5/1995, 60 FR 34856. 8–7–3 ...... Emission limits ...... 1/21/1995 7/5/1995, 60 FR 34856. 8–7–4 ...... Compliance methods ...... 1/21/1995 7/5/1995, 60 FR 34856. 8–7–5 ...... Compliance plan ...... 1/21/1995 7/5/1995, 60 FR 34856. 8–7–6 ...... Certification, recordkeeping, and reporting 1/21/1995 7/5/1995, 60 FR 34856. requirements for coating facilities. 8–7–7 ...... Test methods and procedures ...... 1/21/1995 7/5/1995, 60 FR 34856. 8–7–8 ...... General recordkeeping and reports ...... 1/21/1995 7/5/1995, 60 FR 34856. 8–7–9 ...... Control system operation, maintenance, 1/21/1995 7/5/1995, 60 FR 34856. and testing. 8–7–10 ...... Control system monitoring, recordkeeping, 1/21/1995 7/5/1995, 60 FR 34856. and reporting. Rule 8. Municipal Solid Waste Land- fills Located in Clark, Floyd, Lake, and Porter Coun- ties: 8–8–1 ...... Applicability ...... 1/18/1996 1/17/1997, 62 FR 2591. 8–8–2 ...... Definitions ...... 1/18/1996 1/17/1997, 62 FR 2591. 8–8–3 ...... Requirements; incorporation by reference 1/18/1996 1/17/1997, 62 FR 2591. of federal standards. 8–8–4 ...... Compliance deadlines ...... 1/18/1996 1/17/1997, 62 FR 2591. 8–8–8.1 ...... Municipal Solid Waste Landfills Not Lo- 1/18/1996 1/17/1997, 62 FR 2591. cated in Clark, Floyd, Lake, and Porter Counties. 8–8.1–1 ...... Applicability ...... 1/18/1996 1/17/1997, 62 FR 2591. 8–8.1–2 ...... Definitions ...... 1/18/1996 1/17/1997, 62 FR 2591. 8–8.1–3 ...... Requirements; incorporation by reference 1/18/1996 1/17/1997, 62 FR 2591. of federal standards. 8–8.1–4 ...... Compliance deadlines ...... 1/18/1996 1/17/1997, 62 FR 2591. 8–8.1–5 ...... Alternative requirements ...... 1/18/1996 1/17/1997, 62 FR 2591. Rule 9. Volatile Or- ganic Liquid Stor- age Vessels: 8–9–1 ...... Applicability ...... 1/18/1996 1/17/1997, 62 FR 2593. 8–9–2 ...... Exemptions ...... 1/18/1996 1/17/1997, 62 FR 2593. 8–9–3 ...... Definitions ...... 1/18/1996 1/17/1997, 62 FR 2593. 8–9–4 ...... Standards ...... 1/18/1996 1/17/1997, 62 FR 2593. 8–9–5 ...... Testing and procedures ...... 1/18/1996 1/17/1997, 62 FR 2593. 8–9–6 ...... Recordkeeping and reporting requirements 1/18/1996 1/17/1997, 62 FR 2593. Rule 10. Automobile Refinishing: 8–10–1 ...... Applicability ...... 8/13/1998 12/20/1999, 64 FR 71031. 8–10–2 ...... Definitions ...... 11/2/1995 6/13/1996, 61 FR 29965. 8–10–3 ...... Requirements ...... 5/23/1999 12/20/1999, 64 FR 71031. 8–10–4 ...... Means to limit volatile organic compound 11/2/1995 6/13/1996, 61 FR 29965. emissions. 8–10–5 ...... Work practice standards ...... 8/13/1998 12/20/1999, 64 FR 71031. 8–10–6 ...... Compliance procedures ...... 8/13/1998 12/20/1999, 64 FR 71031. 8–10–7 ...... Test procedures ...... 11/2/1995 6/13/1996, 61 FR 29965. 8–10–8 ...... Control system operation, maintenance, 11/2/1995 6/13/1996, 61 FR 29965. and monitoring (Repealed). 8–10–9 ...... Recordkeeping and reporting ...... 8/13/1998 12/20/1999, 64 FR 71031. Rule 11. Wood Fur- niture Coating: 8–11–1 ...... Applicability ...... 1/4/1996 10/30/1996, 61 FR 55889. 8–11–2 ...... Definitions ...... 1/4/1996 10/30/1996, 61 FR 55889. 8–11–3 ...... Emission limits ...... 1/4/1996 10/30/1996, 61 FR 55889. 8–11–4 ...... Work practice standards ...... 1/4/1996 10/30/1996, 61 FR 55889. 8–11–5 ...... Continuous compliance plan ...... 1/4/1996 10/30/1996, 61 FR 55889. 8–11–6 ...... Compliance procedures and monitoring re- 1/4/1996 10/30/1996, 61 FR 55889. quirements. 8–11–7 ...... Test procedures ...... 1/4/1996 10/30/1996, 61 FR 55889. 8–11–8 ...... Recordkeeping requirements ...... 1/4/1996 10/30/1996, 61 FR 55889. 8–11–9 ...... Reporting requirements ...... 1/4/1996 10/30/1996, 61 FR 55889. 8–11–10 ...... Provisions for sources electing to use 1/4/1996 10/30/1996, 61 FR 55889. emissions averaging.
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EPA-APPROVED INDIANA REGULATIONS—Continued
Indiana Indiana citation Subject effective date EPA approval date Notes
Rule 12. Shipbuilding or Ship Repair Op- erations in Clark, Floyd, Lake, and Porter Counties: 8–12–1 ...... Applicability ...... 5/1/1996 1/22/1997, 62 FR 3216. 8–12–2 ...... Exemptions ...... 7/15/2001 4/1/2003, 68 FR 15664. 8–12–3 ...... Definitions ...... 5/1/1996 1/22/1997, 62 FR 3216. 8–12–4 ...... Volatile organic compound emissions lim- 7/15/2001 4/1/2003, 68 FR 15664. iting requirements. 8–12–5 ...... Compliance requirements ...... 7/15/2001 4/1/2003, 68 FR 15664. 8–12–6 ...... Test methods and procedures ...... 7/15/2001 4/1/2003, 68 FR 15664. 8–12–7 ...... Recordkeeping, notification, and reporting 7/15/2001 4/1/2003, 68 FR 15664. requirements. Rule 13. Sinter Plants: 8–13–1 ...... Applicability ...... 7/24/1998 7/5/2000, 65 FR 41350. 8–13–2 ...... Definitions ...... 7/24/1998 7/5/2000, 65 FR 41350. 8–13–3 ...... Emission limit ...... 7/24/1998 7/5/2000, 65 FR 41350. 8–13–4 ...... Compliance requirements ...... 7/24/1998 7/5/2000, 65 FR 41350. 8–13–5 ...... Test procedures ...... 7/24/1998 7/5/2000, 65 FR 41350. 8–13–6 ...... Control measure operation, maintenance, 7/24/1998 7/5/2000, 65 FR 41350. and monitoring. 8–13–7 ...... Recordkeeping and reporting ...... 7/24/1998 7/5/2000, 65 FR 41350. 8–13–8 ...... Continuous emissions monitoring ...... 7/24/1998 7/5/2000, 65 FR 41350.
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* * * * * approval of the use of MOVES in official ID No. EPA–HQ–OAR–2011–0393. [FR Doc. 2011–26341 Filed 10–12–11; 8:45 am] state air quality implementation plan Please include two copies. Such BILLING CODE 6560–50–P (SIP) submissions or the existing grace deliveries are only accepted during the period before MOVES2010a is required Docket’s normal hours of operation, and for carbon monoxide and particulate special arrangements should be made ENVIRONMENTAL PROTECTION matter hot-spot analyses for project- for deliveries of boxed information. AGENCY level conformity determinations. Instructions: Direct your comments to DATES: 40 CFR Part 93 This rule is effective on Docket ID No. EPA–HQ–OAR–2011– December 12, 2011 without further 0393. EPA’s policy is that all comments [EPA–HQ–OAR–2011–0393; FRL–9478–1] notice, unless EPA receives adverse received will be included in the public comment by November 14, 2011. If EPA docket without change and may be RIN 2060–AR03 receives adverse comment, we will made available online at http:// publish a timely withdrawal in the Transportation Conformity Rule: www.regulations.gov, including any Federal Register informing the public MOVES Regional Grace Period personal information provided, unless that the rule will not take effect. Extension the comment includes information ADDRESSES: Submit any comments to claimed to be Confidential Business AGENCY: Environmental Protection Docket ID No. EPA–OAR–2011–0393, by Information (CBI) or other information Agency (EPA). one of the following methods: whose disclosure is restricted by statute. • ACTION: Direct final rule. www.regulations.gov: Follow the Do not submit information that you on-line instructions for submitting consider to be CBI or otherwise SUMMARY: EPA is taking direct final comments. protected through www.regulations.gov action to extend the grace period before • E-mail: [email protected]. or e-mail. The www.regulations.gov Web the Motor Vehicle Emission Simulator • Fax: (202) 566–9744. site is an ‘‘anonymous access’’ system, model (currently MOVES2010a) is • Mail: Air Docket, Environmental which means EPA will not know your required for regional emissions analyses Protection Agency, Mailcode: 2822T, identity or contact information unless for transportation conformity 1200 Pennsylvania Ave., NW., you provide it in the body of your determinations (‘‘regional conformity Washington, DC, 20460, Attention comment. If you send an e-mail analyses’’). This final rule provides an Docket ID No. EPA–HQ–OAR–2011– comment directly to EPA without going additional year to the previously 0393. Please include a total of two through www.regulations.gov, your established two-year conformity grace copies. e-mail address will be automatically period. As a result, EPA is announcing • Hand Delivery: Air Docket, captured and included as part of the in this Federal Register that MOVES is Environmental Protection Agency: EPA comment that is placed in the public not required for regional conformity West Building, EPA Docket Center docket and made available on the analyses until March 2, 2013. This (Room 3334), 1301 Constitution Ave., Internet. If you submit an electronic action does not affect EPA’s previous NW., Washington, DC, Attention Docket comment, EPA recommends that you
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include your name and other contact Agency, 2000 Traverwood Drive, Ann this as a noncontroversial action and information in the body of your Arbor, MI 48105; telephone number: anticipate no adverse comment. This comment and with any disk or CD–ROM (734) 214–4812; fax number: (734) 214– rule makes a one-time, minor revision to you submit. If EPA cannot read your 4052; e-mail address: the transportation conformity rule to comment due to technical difficulties [email protected]. provide administrative relief requested and cannot contact you for clarification, SUPPLEMENTARY INFORMATION: The by state and local agencies for certain EPA may not be able to consider your content of this preamble is listed in the nonattainment and maintenance areas. comment. following outline: As described more fully below, there are Electronic files should avoid the use significant technical differences of special characters, any form of I. General Information II. Background between MOVES2010a and the previous encryption, and be free of any defects or emissions model, and affected state and viruses. For additional information III. Extension of MOVES2010a Regional Conformity Grace Period local agencies require additional time about EPA’s public docket visit the EPA IV. Conformity SIPs beyond the two-year grace period Docket Center homepage at: http:// V. Statutory and Executive Order Reviews provided by 40 CFR 93.111(b) to make www.epa.gov/epahome/dockets.htm. the conformity transition to For additional instructions on If this rule becomes effective, the MOVES2010a successfully. Today’s submitting comments, go to the conformity grace period in applicable action is based on the circumstances SUPPLEMENTARY INFORMATION section of areas will end on March 2, 2013, after this document. which MOVES2010a is required to be unique to this transition, and does not Docket: All documents in the docket used for new regional conformity change the grace period provisions are listed in the www.regulations.gov analyses. applicable to future models. However, in the ‘‘Proposed Rules’’ section of index. Although listed in the index, Availability of MOVES2010a and today’s Federal Register, we are some information is not publicly Support Materials available, e.g., CBI or other information publishing a separate document that whose disclosure is restricted by statute. Copies of the official version of the will serve as the proposed rule to extend Certain other material, such as MOVES2010a motor vehicle emissions the MOVES2010a regional conformity copyrighted material, will be publicly model, along with user guides and grace period if adverse comments are available only in hard copy. Publicly supporting documentation, are available received on this direct final rule. We available docket materials are available on EPA’s MOVES Web site: http:// will not institute a second comment either electronically in www.epa.gov/otaq/models/moves/ period on this action. Any parties www.regulations.gov or in hard copy at index.htm. interested in commenting must do so at the Air and Radiation Docket, EPA/DC, Guidance on how to apply this time. For further information about EPA West, Room 3334, 1301 MOVES2010a for SIPs and commenting on this rule, see the transportation conformity purposes, Constitution Ave., NW., Washington, ADDRESSES section of this document. including ‘‘Policy Guidance on the Use DC. The Public Reading Room is open If EPA receives adverse comment, we from 8:30 a.m. to 4:30 p.m., Monday of MOVES2010 for State would publish a timely withdrawal in through Friday, excluding legal Implementation Plan Development, the Federal Register informing the holidays. The telephone number for the Transportation Conformity, and Other public that this direct final rule will not Public Reading Room is (202) 566–1744 Purposes’’ (EPA–420–B–09–046, and the telephone number for the Air December 2009) and ‘‘Technical take effect. We would address all public and Radiation Docket is (202) 566–1742. Guidance on the Use of MOVES2010 for comments in any subsequent final rule based on the proposed rule. FOR FURTHER INFORMATION CONTACT: Meg Emission Inventory Preparation in State Implementation Plans and Patulski, State Measures and Conformity B. Does this action apply to me? Group, Transportation and Regional Transportation Conformity’’ (EPA–420– Programs Division, Environmental B–10–023, April 2010) can be found on Entities potentially regulated by the Protection Agency, 2000 Traverwood the EPA’s transportation conformity transportation conformity rule are those Drive, Ann Arbor, MI 48105; telephone Web site at: http://www.epa.gov/otaq/ that adopt, approve, or fund number: (734) 214–4842; fax number: stateresources/transconf/policy.htm. transportation plans, transportation (734) 214–4052; e-mail address: I. General Information improvement programs (TIPs), or [email protected]; or Astrid Larsen, projects under title 23 U.S.C. or title 49 State Measures and Conformity Group, A. Why is EPA using a direct final rule? U.S.C. Chapter 53. Regulated categories Transportation and Regional Programs EPA is publishing this rule without a and entities affected by today’s action Division, Environmental Protection prior proposed rule because we view include:
Category Examples of regulated entities
Local government ...... Local transportation and air quality agencies, including metropolitan planning organizations (MPOs). State government ...... State transportation and air quality agencies. Federal government ...... Department of Transportation (Federal Highway Administration (FHWA) and Federal Transit Administration (FTA)).
This table is not intended to be conformity rule. Other types of entities the applicability of this action to a exhaustive, but rather provides a guide not listed in the table could also be particular entity, consult the persons for readers regarding entities likely to be regulated. To determine whether your listed in the preceding FOR FURTHER affected by this direct final rule. This organization is regulated by this action, INFORMATION CONTACT section. table lists the types of entities of which you should carefully examine the EPA is aware that potentially could be applicability requirements in 40 CFR regulated by the transportation 93.102. If you have questions regarding
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C. What should I consider as I prepare document, as well as the documents brief description written by the docket any comments for EPA? specifically referenced in this action, staff. any public comments received, and For additional information about the 1. Submitting CBI other information related to this action electronic public docket, visit the EPA Do not submit this information to EPA at the official public docket. See the Docket Center homepage at: http:// through www.regulations.gov or e-mail. ADDRESSES section for its location. www.epa.gov/epahome/dockets.htm. Clearly mark the part or all of the II. Background information that you claim to be CBI. 2. Electronic Access For CBI information in a disk or CD– You may access this Federal Register A. What is transportation conformity? ROM that you mail to EPA, mark the document electronically through EPA’s Transportation conformity is required outside of the disk or CD–ROM as CBI transportation conformity Web site at: under Clean Air Act (CAA) section and then identify electronically within http://www.epa.gov/otaq/ 176(c) (42 U.S.C. 7506(c)) to ensure that the disk or CD–ROM the specific stateresources/transconf/index.htm. transportation plans, transportation information that is claimed as CBI. In You may also access this document improvement programs (TIPs), and addition to one complete version of the electronically under the Federal federally supported highway and transit comment that includes information Register listings at: http://www.epa.gov/ projects are consistent with the purpose claimed as CBI, a copy of the comment fedrgstr/. of the SIP. Conformity to the purpose of that does not contain the information An electronic version of the official the SIP means that transportation claimed as CBI must be submitted for public docket is available through activities will not cause or contribute to inclusion in the public docket. www.regulations.gov. You may use new air quality violations, worsen Information so marked will not be www.regulations.gov to submit or view existing violations, or delay timely disclosed except in accordance with public comments, access the index attainment of the relevant national procedures set forth in 40 CFR Part 2. listing of the contents of the official ambient air quality standard (NAAQS) 2. Tips for Preparing Your Comments public docket, and to access those or required interim milestones. documents in the public docket that are Transportation conformity (hereafter, When submitting comments, available electronically. Once in the ‘‘conformity’’) applies to areas that are remember to: system, select ‘‘search,’’ then key in the designated nonattainment, and those • Identify the rulemaking by docket appropriate docket identification areas redesignated to attainment after number and other identifying number. 1990 (‘‘maintenance areas’’) for information (subject heading, Federal Certain types of information will not transportation-related criteria Register date and page number). • be placed in the electronic public pollutants: ozone, particulate matter Follow directions—The Agency 1 may ask you to respond to specific docket. Information claimed as CBI and (PM2.5 and PM10), carbon monoxide questions or organize comments by other information for which disclosure (CO), and nitrogen dioxide (NO2). EPA’s referencing a Code of Federal is restricted by statute is not available conformity rule (40 CFR parts 51 and Regulations (CFR) part or section for public viewing in the electronic 93) establishes the criteria and number. public docket. EPA’s policy is that procedures for determining whether • Explain why you agree or disagree, copyrighted material will not be placed transportation activities conform to the suggest alternatives and substitute in the electronic public docket but will SIP. EPA first promulgated the language for your requested changes. be available only in printed, paper form conformity rule on November 24, 1993 • Describe any assumptions and in the official public docket. (58 FR 62188) and subsequently provide any technical information and/ To the extent feasible, publicly published several other amendments. or data that you used. available docket materials will be made The Department of Transportation • If you estimate potential costs or available in the electronic public (DOT) is EPA’s Federal partner in burdens, explain how you arrived at docket. When a document is selected implementing the conformity your estimate in sufficient detail to from the index list in EPA Dockets, the regulation. EPA has coordinated with allow for it to be reproduced. system will identify whether the DOT, and they concur with this direct • Provide specific examples to document is available for viewing in the final rule. illustrate your concerns, and suggest electronic public docket. Although not B. What is MOVES2010a, and how has alternatives. all docket materials may be available it been implemented to date? • Explain your views as clearly as electronically, you may still access any possible, avoiding the use of profanity of the publicly available docket The Motor Vehicle Emission or personal threats. materials through the docket facility Simulator model (MOVES) is EPA’s • Make sure to submit your identified in the ADDRESSES section. state-of-the-art model for estimating comments by the comment period EPA intends to provide electronic emissions from highway vehicles, based deadline identified. access in the future to all of the publicly on analyses of millions of emission test results and considerable advances in the 3. Docket Copying Costs available docket materials through the electronic public docket. Agency’s understanding of vehicle You may be required to pay a Public comments submitted on emissions. MOVES is currently EPA’s reasonable fee for copying docket computer disks that are mailed or official emissions model for state and materials. delivered to the docket will be local agencies to estimate volatile organic compounds (VOCs), nitrogen D. How do I get copies of this direct transferred to the electronic public oxides (NO ), PM, CO, and other final rule and other documents? docket. Public comments that are X mailed or delivered to the docket will be precursors from cars, trucks, buses, and 1. Docket scanned and placed in the electronic motorcycles for SIP purposes and EPA has established an official public public docket. Where practical, physical 1 40 CFR 93.102(b)(1) defines PM2.5 and PM10 as docket for this action under Docket ID objects will be photographed, and the particles with an aerodynamic diameter less than or No. EPA–HQ–OAR–2011–0393. You can photograph will be placed in the equal to a nominal 2.5 and 10 micrometers, get a paper copy of this Federal Register electronic public docket along with a respectively.
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conformity determinations outside of previous version of the MOBILE model, MOVES2010a as well as completing California. MOVES’ database-centered the basic input and output structure of necessary SIP and/or transportation design allows EPA to update emissions that model was essentially unchanged plan/TIP changes to assure conformity data more frequently and allows users since the early 1980s. Over time, state in the future. Further details on today’s much greater flexibility in organizing and local agencies developed their own action are provided below. input and output data. methods for incorporating local inputs Today’s action does not affect EPA’s MOVES2010a is the latest official in MOBILE format and for post- previous approval of MOVES2010a for version of MOVES that EPA has processing MOBILE results for official SIP submissions developed approved for SIP and conformity inventory development and air quality outside of California.6 Today’s purposes. EPA originally announced the modeling. To help state and local rulemaking also does not affect the release of MOVES2010 in the Federal agencies with this part of the current existing grace period before Register on March 2, 2010 (75 FR 9411) transition, EPA created a number of MOVES2010a is required for PM2.5, and subsequently released tools that take input data formatted for PM10, and CO hot-spot analyses for MOVES2010a on September 8, 2010. MOBILE6.2 and convert that data for project-level conformity determinations MOVES2010a includes minor revisions use in MOVES2010a. (75 FR 79370). EPA coordinated closely that enhance model performance and do EPA anticipated many of these with DOT in developing today’s action, not significantly affect criteria pollutant challenges when it released MOVES. In and DOT concurs on this direct final emissions results. Since these are minor order to assist in this model transition, rule. EPA and DOT have already provided revisions to MOVES2010, MOVES2010a III. Extension of MOVES2010a Regional hands-on MOVES training in many is not considered a ‘‘new model’’ under Conformity Grace Period section 93.111 of the conformity rule, as states.4 Additional MOVES training for described further below. regional inventories has been requested, A. Background MOVES2010a is a significant and will continue to be offered for the CAA section 176(c)(1) states that improvement over the previous foreseeable future. EPA continues to ‘‘* * * [t]he determination of emissions model, MOBILE6.2,2 in terms provide other technical assistance to conformity shall be based on the most of quality of results and overall state and local agencies via on-going recent estimates of emissions, and such functionality. It incorporates the latest conference calls with user groups, e- estimates shall be determined from the emissions data, more sophisticated mail and phone support, a frequently most recent population, employment, calculation algorithms, increased user asked questions web page, and web- travel, and congestion estimates * * *.’’ flexibility, new software design, and based presentations. All of these efforts To meet this requirement, section significant new capabilities. While these are helping state and local agencies 93.111 of the conformity rule requires changes improve the quality of on-road make the transition to MOVES2010a, that conformity determinations be based mobile source inventories, the overall and many agencies are making on the latest motor vehicle emissions degree of change in the model’s function significant progress in applying the model approved by EPA. When EPA also adds to the start-up time required model for official purposes. However, approves a new emissions model, EPA for the transition from MOBILE6.2 to other state and local agencies are still consults with DOT to establish a grace MOVES2010a. developing the technical capacity to use period before the model is required for EPA developed MOVES as a MOVES2010a, and need more time to conformity analyses (40 CFR 93.111(b)). completely new model. Whereas transition to the model and then EPA must consider many factors when evaluate whether SIPs and their motor MOBILE6.2 was written in FORTRAN establishing a grace period for vehicle emissions budgets, or and used simple text files for data input conformity determinations (40 CFR transportation plans and TIPs, should be and output, MOVES2010a is written in 93.111(b)(2)). The length of the grace revised for future conformity JAVA and uses a relational database period will depend on the degree of determinations. structure in MYSQL to handle input and change in the model and the scope of re- output as data tables. These changes C. Why is EPA conducting this planning likely to be necessary for make MOVES more flexible, and the rulemaking? MPOs in order to assure conformity. The conformity rule provides for a grace analysis of new data incorporated Today’s action provides additional period for new emissions models of within MOVES will enhance state and time that is critical for nonattainment between three and 24 months (40 CFR local agency understanding of how on- and maintenance areas to learn and 93.111(b)(1)). road mobile sources contribute to apply MOVES2010a for regional In the preamble to the original 1993 emissions inventories and the relative conformity analyses.5 EPA has been conformity rule, EPA articulated its effectiveness of various control contacted by several state and local intentions for establishing the length of strategies. However, this new model transportation and air quality agencies conformity grace period for a new framework has created a significant and associations that are concerned that emissions model (58 FR 62211): learning curve for state and local agency there has not been sufficient transition staff that are required to use MOVES.3 time for using MOVES2010a in regional ‘‘EPA and DOT will consider extending the In addition to the challenges of conformity analyses. These concerns grace period if the effects of the new learning new software, state and local revolve around the time needed to build emissions model are so significant that agencies also have to make substantial previous SIP demonstrations of what technical capacity for using emission levels are consistent with changes in the processes they have attainment would be substantially affected. developed to create model input and 4 To date, EPA and DOT staff have provided a 2- In such cases, states should have an apply model output. While there were day hands-on MOVES course for regional emissions opportunity to revise their SIPs before MPOs incremental changes between each inventories (including regional conformity analyses) at over 30 locations around the country. must use the model’s new emissions factors. 5 MPOs conduct regional conformity analyses to 2 EPA announced the release of MOBILE6.2 in demonstrate that transportation plans and TIPs are 6 MOVES is not approved for use in California. 2004 (69 FR 28830). consistent with the air quality purposes of the SIP. EPA approved and announced the latest version of 3 Some states also purchased computers with Regional conformity analyses are also conducted in California’s EMFAC model (EMFAC2007) for SIP additional capacity and features for running ‘‘isolated rural nonattainment and maintenance development and regional conformity analyses in MOVES. areas’’ (defined by 40 CFR 93.101). that state on January 18, 2008 (73 FR 3464).
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EPA encourages all agencies to inform EPA minor revisions will not start a new encourages that they continue. of the impacts of new emissions models in grace period for regional conformity However, as discussed above, their area, and EPA may pause to seek such analyses and could include performance challenges related to start-up and model input before determining the length of the enhancements that reduce MOVES run application have been much greater in grace period.’’ time or model improvements to reduce the transition to MOVES2010a, Section 93.111 conformity requirements errors in operating the model. Any compared to past transitions between have not changed since 1993, and have major model updates would be MOBILE model versions. As a result, been implemented successfully for evaluated separately as a ‘‘new model’’ EPA has determined that a one-year many previous model transitions. under conformity rule section 93.111, extension of the MOVES2010a grace On March 2, 2010, EPA announced pursuant to previously established period is necessary for state and local the official release of MOVES2010 and requirements. agencies to complete the current established a two-year grace period Between now and the end of the transition. Today’s action ensures that before this model was required for new extended conformity grace period state and local governments have the regional conformity analyses (75 FR (March 2, 2013), areas should use the necessary time to implement the 9411). Although the original grace interagency consultation process to conformity rule as originally intended. period was established for MOVES2010, examine how MOVES2010a will impact Since 1993, the fundamental purpose EPA clarified in September 2010 that their future MPO transportation plan/ of section 93.111(b) of the conformity the same grace period for regional TIP conformity determinations. Isolated rule has been to provide a sufficient conformity analyses also applies to rural areas should also consider the amount of time for MPOs and other state MOVES2010a.7 EPA based its decision impact of using MOVES2010a on future and local agencies to adapt to using new to establish a two-year conformity grace regional conformity analyses. Agencies emissions tools. As discussed above, the period on the factors under section should carefully consider whether the transition to a new emissions model for 93.111(b)(2), and advised areas to use SIP and its motor vehicle emissions conformity involves more than learning the interagency consultation process to budgets should be revised with to use the new model and preparing examine the impact of using MOVES in MOVES2010a or if transportation plans input data and model output. After their future regional conformity and TIPs should be revised before the model start-up is complete, state and analyses. end of the conformity grace period, local agencies also need to consider how Without further EPA action, since doing so may be necessary to the model affects regional conformity MOVES2010a would be required for ensure conformity in the future. analysis results and whether SIP and/or regional conformity analyses that begin In general, regional conformity transportation plan/TIP changes are after March 2, 2012. As discussed analyses that are started during the necessary to assure future conformity further in today’s action, the special grace period can use either MOBILE6.2 determinations. EPA believes that this circumstances of the transition from or MOVES2010a. When the grace period one-time extension of the current MOBILE to MOVES2010a require a ends on March 2, 2013, MOVES2010a MOVES2010a regional grace period is reevaluation of the length of this will become the only approved motor critical to assure future conformity conformity grace period. vehicle emissions model for regional determinations based on MOVES2010a. B. Description of Direct Final Rule conformity analyses outside California. EPA has the discretion to establish an This means that all new regional extended grace period for MOVES2010a, In today’s action, EPA is providing an and today’s action is consistent with additional year before MOVES2010a is conformity analyses started after the end of the grace period must be based on CAA section 176(c)(1) requirements. required for regional conformity EPA believes that providing one analyses. As a result, EPA is also MOVES2010a, even if the SIP is based on MOBILE6.2 or earlier versions of additional year is appropriate due to announcing in today’s Federal Register this unique transition from MOBILE6.2 that MOVES2010a will be required for MOBILE. If you have questions about which to MOVES2010a. This decision is new regional conformity analyses that model should be used in your consistent with the existing conformity begin after March 2, 2013. State and conformity determination, you can criteria in section 93.111(b)(2) of the local agencies outside California can use consult with your EPA Regional Office. conformity rule that requires the length MOVES2010a for regional conformity For complete explanations of how of the grace period to be based on ‘‘the analyses earlier than March 2, 2013, if MOVES2010a is to be implemented for degree of change in the model and the desired, and would be required to do so transportation conformity, including scope of re-planning likely to be under limited circumstances such as details about using MOVES2010a during necessary by MPOs in order to assure after MOVES2010a SIP motor vehicle the grace period, refer to EPA’s existing conformity.’’ emissions budgets have been found MOVES policy guidance.8 Today’s action does not delay the use adequate or approved for conformity of MOVES2010a in SIP development or purposes. C. Rationale slow down past progress toward using Due to the unique circumstances MOVES2010a is EPA’s best tool for the new model for regional conformity presented by the transition from estimating criteria pollutant emissions, analyses. As noted above, many state MOBILE6.2 to MOVES2010a, today’s and it is a significant improvement over and local agencies are already learning action adds a new paragraph (b)(3) to previous MOBILE models. State and and applying MOVES2010a. Some are section 93.111 of the conformity rule. local agencies have made significant revising existing SIP budgets using the Today’s final rule only applies to progress to date in using MOVES2010a, new model, while others may be MOVES2010a and any future minor and EPA supports these efforts and incorporating MOVES2010a into new revisions to this model that EPA maintenance plans or clean data releases before March 2, 2013. Such 8 ‘‘Policy Guidance on the Use of MOVES2010 for determinations. Under EPA’s existing State Implementation Plan Development, MOVES policy guidance, new or revised 7 See ‘‘EPA Releases MOVES2010a Mobile Source Transportation Conformity, and Other Purposes’’ SIP budgets must still be based on Emissions Model Update: Questions and Answers’’ (EPA–420–B–09–046, December 2009) can be found (EPA–420–F–10–050, August 2010) at: http:// on the EPA’s transportation conformity Web site at: MOVES2010a. For example, www.epa.gov/otaq/models/moves/MOVES2010a/ http://www.epa.gov/otaq/stateresources/transconf/ MOVES2010a continues to be required 420f10050.pdf. policy.htm. for attainment SIPs for the 2006 24-hour
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PM2.5 NAAQS. MOVES2010a is also any current state conformity SIP and Under Executive Order 12866, this required for any regional conformity therefore applies immediately in all action is a ‘‘significant regulatory analyses prior to March 2, 2013 if SIP areas pursuant to section 51.390(a). action.’’ Accordingly, EPA submitted budgets based on MOVES2010 or In addition, section 51.390(c) of the this action to the Office of Management MOVES2010a are approved or found conformity rule requires states to submit and Budget (OMB) for review under EO adequate sooner.9 a new or revised conformity SIP to EPA 12866 and 13563 and any changes made In addition, today’s action does not within 12 months of the Federal in response to OMB recommendations change the current MOVES2010a grace Register publication date of any final have been documented in the docket for period for new PM2.5, PM10, and CO hot- conformity amendments for certain this action. spot analyses for project-level situations. States with approved B. Paperwork Reduction Act conformity determinations. EPA noted conformity SIPs that are prepared in previously that a two-year conformity accordance with current CAA This action does not impose any new grace period was necessary to apply requirements are not required to submit information collection burden. The MOVES2010a for hot-spot analyses (75 new conformity SIP revisions, since information collection requirements of FR 79370). However, the transition to section 93.111 of the conformity rule is EPA’s existing transportation MOVES2010a for project-level hot-spot not contained in these SIPs. A conformity regulations and the revisions analyses does not involve the conformity SIP prepared in accordance in today’s action are already covered by complexity associated with the regional with current CAA requirements EPA information collection request level, where SIP budgets and/or contains only the state’s criteria and (ICR) entitled, ‘‘Transportation Conformity Determinations for transportation plans/TIPs may need to procedures for interagency consultation Federally Funded and Approved be revised before regional conformity (40 CFR 93.105) and two additional Transportation Plans, Programs and analyses based on MOVES2010a can be provisions related to written Projects.’’ OMB has previously completed. commitments for certain control and approved the information collection Finally, in issuing this rule, EPA is mitigation measures (40 CFR requirements contained in the existing not proceeding pursuant to or reopening 93.122(a)(4)(ii) and 93.125(c)). However, regulations at 40 CFR Part 93 under the as a general matter the process and states with approved conformity SIPs provisions of the Paperwork Reduction length of conformity grace periods for that include section 93.111 from a Act, 44 U.S.C. 3501 et seq. and has future emissions model approvals, previous rulemaking are required to assigned OMB control number 2060– which were previously established in submit a SIP revision by October 12, 0561. The OMB control numbers for 1993 (58 FR 62211). The unique set of 2012, although EPA strongly encourages EPA’s regulations in 40 CFR are listed circumstances involved in the current these states to submit a SIP revision in 40 CFR Part 9. transition warrants additional state and with only the three required local flexibility before MOVES2010a is provisions.11 A state without an C. Regulatory Flexibility Act required for regional conformity approved conformity SIP is not required The Regulatory Flexibility Act (RFA) analyses. to submit a new conformity SIP within generally requires an Agency to prepare IV. Conformity SIPs one year of today’s action, but previous a regulatory flexibility analysis of rules conformity SIP deadlines continue to subject to notice-and-comment The MOVES2010a regional grace apply. period extension applies on the effective rulemaking requirements under the For additional information on date of today’s direct final rule in all Administrative Procedure Act or any conformity SIPs, please refer to the nonattainment and maintenance areas. other statute unless the Agency certifies January 2009 guidance entitled, Section 51.390(a) of the conformity rule that the rule will not have a significant ‘‘Guidance for Developing states that the Federal rule applies for economic impact on a substantial Transportation Conformity State the portion of the requirements that are number of small entities. Small entities Implementation Plans’’ available on not included in a state’s approved include small businesses, small not-for- EPA’s Web site at: http://www.epa.gov/ conformity SIP.10 profit organizations and small Section 51.390(b) otaq/stateresources/transconf/policy/ further allows state conformity government jurisdictions. 420b09001.pdf. For purposes of assessing the impacts provisions to contain criteria and of today’s rule on small entities, small procedures that are more stringent than V. Statutory and Executive Order entity is defined as: (1) A small business the Federal requirements. However, in Reviews as defined by the Small Business the case of states with conformity SIPs A. Executive Order 12866: Regulatory Administration’s (SBA) regulations at 13 that include the grace period provision Planning and Review CFR 121.201; (2) a small governmental in 40 CFR 93.111(b)(1), EPA concludes jurisdiction that is a government of a that such states did not intend to require Under Executive Order (EO) 12866 city, county, town, school district or a shorter grace period than EPA, in (58 FR 51735; October 4, 1993), this special district with a population of less consultation with DOT, believes is action is a ‘‘significant regulatory than 50,000; and (3) a small needed. Therefore, since the action.’’ Accordingly, EPA submitted organization that is any not-for-profit MOVES2010a grace period extension is this action to the Office of Management enterprise that is independently owned a new provision being added to the and Budget (OMB) for review under EO and operated and is not dominant in its conformity rule, it is not included in 12866 and 13563 (76 FR 3821; January 21, 2011) and any changes made in field. After considering the economic 9 See Questions 5, 6, and 11 of ‘‘Policy Guidance response to OMB recommendations impacts of today’s rule on small entities, on the Use of MOVES2010 for State Implementation have been documented in the docket for I certify that this action will not have a Plan Development, Transportation Conformity, and this action. Other Purposes’’ (EPA–420–B–09–046, December significant economic impact on a 2009). substantial number of small entities. 10 A conformity SIP is required by the CAA and 11 The conformity SIP may contain provisions contains a state’s conformity requirements, more stringent than the Federal requirements, and This regulation directly affects Federal including the state’s specific interagency in these cases, states would specify this intention agencies and MPOs that, by definition, consultation procedures. in its original conformity SIP submission. are designated under Federal
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transportation laws only for G. Executive Order 13045: Protection of environmental effects of their programs, metropolitan areas with a population of Children From Environmental Health policies, and activities on minority at least 50,000. These organizations do and Safety Risks populations and low-income not constitute small entities within the This rule is not subject to Executive populations in the United States. meaning of the RFA. Therefore, this rule Order 13045 (62 FR 19885, April 23, EPA has determined that this rule will will not impose any requirements on 1997) because it is not economically not have disproportionately high and small entities. significant as defined in EO 12866, and adverse human health or environmental effects on minority or low-income D. Unfunded Mandates Reform Act because the Agency does not believe the populations. The final rule involves a (UMRA) environmental health or safety risks addressed by this action present a minor revision that provides This rule does not contain a Federal disproportionate risk to children. administrative relief but does not mandate that may result in expenditures change the conformity rule’s underlying of $100 million or more for state, local, H. Executive Order 13211: Actions requirements for regional conformity and tribal governments, in the aggregate, Concerning Regulations That analyses. or the private sector in any one year. Significantly Affect Energy Supply, This rule merely implements already Distribution, or Use K. Congressional Review Act established law that imposes conformity This action is not a ‘‘significant The Congressional Review Act, 5 requirements and does not itself impose energy action’’ as defined in Executive U.S.C. 801 et seq., as added by the Small requirements that may result in Order 13211 (66 FR 18355 (May 22, Business Regulatory Enforcement expenditures of $100 million or more in 2001)), because it is not likely to have Fairness Act of 1996, generally provides any year. Thus, today’s rule is not a significant adverse effect on the that before a rule may take effect, the subject to the requirements of sections supply, distribution, or use of energy. It agency promulgating the rule must 202 and 205 of the UMRA. does not create a serious inconsistency submit a rule report, which includes a This rule is also not subject to the or otherwise interfere with an action copy of the rule, to each House of the requirements of section 203 of UMRA taken or planned by another agency Congress and to the Comptroller General because it contains no regulatory regarding energy. This action is not of the United States. EPA will submit a requirements that might significantly or subject to EO 13211 because it does not report containing this rule and other uniquely affect small governments. This have any adverse energy effects. required information to the U.S. Senate, rule will not significantly or uniquely the U.S. House of Representatives, and impact small governments because it I. National Technology Transfer and the Comptroller General of the United directly affects Federal agencies and Advancement Act States prior to publication of the rule in MPOs that, by definition, are designated Section 12(d) of the National the Federal Register. A Major rule under Federal transportation laws only Technology Transfer and Advancement cannot take effect until 60 days after it for metropolitan areas with a population Act of 1995 (NTTAA), Public Law 104– is published in the Federal Register. of at least 50,000. 113, section 12(d) (15 U.S.C. 272 note) This action is not a major rule as E. Executive Order 13132: Federalism directs EPA to use voluntary consensus defined by 5 U.S.C. 804(2). This rule standards in its regulatory activities will be effective November 14, 2011. This rule does not have federalism unless to do so would be inconsistent implications. It will not have substantial with applicable law or otherwise List of Subjects in 40 CFR Part 93 direct effects on states, on the impractical. Voluntary consensus Administrative practice and relationship between the national standards are technical standards (e.g., procedure, Air pollution control, Carbon government and states, or on the material specifications, test methods, monoxide, Clean Air Act, distribution of power and sampling procedures, and business Environmental protection, Highways responsibilities among the various practices) that are developed or adopted and roads, Intergovernmental relations, levels of government, as specified in by voluntary consensus standards Mass transportation, Nitrogen dioxide, Executive Order 13132. The CAA bodies. The NTTAA directs EPA to Ozone, Particulate matter, requires conformity to apply in certain provide Congress, through OMB, Transportation, Volatile organic nonattainment and maintenance areas explanations when the Agency decides compounds. as a matter of law, and today’s action not to use available and applicable Dated: October 4, 2011. merely revises one provision for voluntary consensus standards. This transportation planning entities in rule does not involve technical Lisa P. Jackson, subject areas to follow in meeting their standards. Therefore, EPA is not Administrator. existing statutory obligations. Thus, EO considering the use of any voluntary For the reasons discussed in the 13132 does not apply to this rule. consensus standards. preamble, 40 CFR Part 93 is amended as follows: F. Executive Order 13175: Consultation J. Executive Order 12898: Federal and Coordination With Indian Tribal Actions To Address Environmental PART 93—[AMENDED] Governments Justice in Minority Populations and This action does not have tribal Low-Income Populations ■ 1. The authority citation for Part 93 implications, as specified in Executive Executive Order 12898 (59 FR 7629 continues to read as follows: Order 13175 (65 FR 67249, November 9, (Feb. 16, 1994)) establishes Federal Authority: 42 U.S.C. 7401–7671q. 2000). The CAA requires transportation executive policy on environmental ■ 2. Section 93.111 is amended by conformity to apply in any area that is justice. Its main provision directs adding paragraph (b)(3) to read as designated nonattainment or Federal agencies, to the greatest extent follows: maintenance by EPA. Because today’s practicable and permitted by law, to rule does not significantly or uniquely make environmental justice part of their § 93.111 Criteria and procedures: Latest affect the communities of Indian tribal mission by identifying and addressing, emissions model. governments, EO 13175 does not apply as appropriate, disproportionately high * * * * * to this action. and adverse human health or (b) * * *
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(3) Notwithstanding paragraph (b)(1) 20.12(e)(2). Specifically, a party alleging Federal Communications Commission. of this section, the grace period for a violation of 47 CFR 20.12(e) may file Marlene H. Dortch, using the MOVES2010a emissions a formal or informal complaint pursuant Secretary. model (and minor model revisions) for to the procedures in 47 CFR 1.716– [FR Doc. 2011–26398 Filed 10–12–11; 8:45 am] regional emissions analyses will end on 1.718, 1.720, 1.721, and 1.723–1.735. It BILLING CODE 6712–01–P March 2, 2013. is this rule, 47 CFR 20.12(e)(2), that is * * * * * now effective. [FR Doc. 2011–26347 Filed 10–12–11; 8:45 am] Rule: 47 CFR 20.12(e)(2). FEDERAL COMMUNICATIONS BILLING CODE 6560–50–P Effective date: 10/13/2011. COMMISSION OMB Control No.: 3060–0411. OMB Approval Date: 09/07/2011. 47 CFR Part 64 FEDERAL COMMUNICATIONS Collection 3060–0411 Expiration [DA 11–1649] COMMISSION Date: 09/30/2014. Title: Procedures for Formal Common Carriers; Editorial 47 CFR Part 20 Complaints. Amendments [WT Docket No. 05–265; FCC 11–52] Form No.: FCC Form 485. Estimated Annual Burden: 20 AGENCY: Federal Communications Commission. Reexamination of Roaming Obligations respondents; 301 responses; 1,349 total of Commercial Mobile Radio Service annual hours. ACTION: Final rule. Needs and Uses: On April 7, 2011, the Providers and Other Providers of SUMMARY: In this document, the Commission adopted, for data roaming, Mobile Data Services; Public Commission via the Office of Managing a complaint procedure using most of the Information Collection Approved by Director makes two nonsubstantive, procedural processes already in place Office of Management and Budget editorial amendments to Part 64 of the for resolving formal complaints against Commission’s rules. The Managing AGENCY: Federal Communications common carriers. Specifically, a party Director makes these amendments to Commission. alleging a violation of 47 CFR 20.12(e) delete certain provisions and notes that ACTION: Final rule; announcement of may file a formal or informal complaint are without current legal effect and thus effective date. pursuant to the procedures in 47 CFR obsolete. The Chief of the Consumer and 1.716–1.718, 1.720, 1.721, and 1.723– Governmental Affairs Bureau has SUMMARY: In this document, the Federal 1.735. The Commission finds that it is approved these editorial amendments. Communications Commission (FCC) in the public interest to ensure a announces that it has received Office of consistent Commission process for DATES: Effective October 13, 2011. Management and Budget (OMB) resolving both voice and data roaming FOR FURTHER INFORMATION CONTACT: approval for public information complaints. Moreover, some roaming Deborah Broderson, Office of the Bureau collection 3060–0411, which is disputes will involve both data and Chief, Consumer and Governmental associated with the new complaint voice and are likely to have factual Affairs Bureau at (202) 418–0652, or mechanism for resolving data roaming issues common to both types of e-mail: [email protected]. disputes with commercial mobile data roaming. This approach allows a party SUPPLEMENTARY INFORMATION: This is a service providers. to bring a single proceeding to address summary of the Commission’s DATES: 47 CFR 20.12(e)(2), published such a dispute, rather than having to Amendment of Part 64 of the May 6, 2011 at 76 FR 26199, is effective bifurcate the matter and initiate two Commission’s Rules Regarding October 13, 2011. separate proceedings under two Telecommunication Relay Services and FOR FURTHER INFORMATION CONTACT: different sets of procedures. This, in Related Customer Premises Equipment Contact Judith B. Herman, Federal turn, will be more efficient for the for Persons with Disabilities; Truth-in- Communications Commission, at (202) parties involved, as well as for the Billing Requirements for Common 418–0214 or via the Internet at Judith- Commission, and should result in faster Carriers, Order (Order), document DA [email protected]. resolution of such disputes. 11–1649, adopted September 30, 2011, SUPPLEMENTARY INFORMATION: On This collection of information and released September 30, 2011. The September 7, 2011, the Commission includes the process for submitting a full text of document DA 11–1649 and received approval from the Office of formal complaint. The Commission uses copies of any subsequently filed Management and Budget for a revision this information to determine the documents in this matter will be to public information collection 3060– sufficiency of complaints and to resolve available for public inspection and 0411, which relates to the filing of the merits of disputes between the copying during regular business hours complaints with the Federal parties. Orders issued by the at the FCC Reference Information Communications Commission. Commission in formal complaint Center, Portals II, 445 12th Street, SW., The revision was necessitated by the proceedings are based upon evidence Room CY–A257, Washington, DC 20554. adoption of a new data roaming rule and argument produced by the parties Document DA 11–1649 and copies of requiring commercial mobile data in accordance with the Formal subsequently filed documents in this service providers to offer data roaming Complaint Rules. If the information matter may also be purchased from the arrangements to other such providers.1 were not collected, the Commission Commission’s duplicating contractor, The Commission also provided a would not be able to resolve common Best Copying and Printing, Inc. (BCPI), complaint process by adopting 47 CFR carrier or commercial mobile data at Portals II, 445 12th Street, SW., Room service provider related complaint CY–B402, Washington, DC 20554. 1 See Reexamination of Roaming Obligations of proceedings. An agency may not Customers may contact BCPI at its Web Commercial Mobile Radio Service Providers and conduct or sponsor and a person is not site, http://www.bcpiweb.com, or by Other Providers of Mobile Data Services, WT Docket No. 05–265, FCC 11–52, Second Report and required to respond to a collection of calling 202–488–5300. Document DA Order, 26 FCC Rcd 5411, 76 FR 26199 (2011); 47 information unless it displays a 11–1649 can also be downloaded in CFR 20.12(e). currently valid control number. Word or Portable Document Format
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(PDF) at: http://www.fcc.gov/cgb/dro/ contribution factor used to determine document DA 11–1649 and set forth trs.html#orders. the amount common carriers must herein are nonsubstantive, editorial To request materials in accessible contribute to the Fund). The revisions of the rules under 47 CFR formats for people with disabilities Commission had also conducted 0.231(b) of the Commission’s rules. The (Braille, large print, electronic files, periodic reviews of the administrator’s Commission therefore finds good cause audio format), send an e-mail to performance. See Appointment of to conclude that notice and comment [email protected] or call the Consumer Telecommunications Relay Services procedures are unnecessary and would and Governmental Affairs Bureau at Fund Administrator and Composition of not serve any useful purpose. See 5 (202) 418–0530 (voice), (202) 418–0432 the Interstate TRS Advisory Council, CC U.S.C. 553(b)(3)(B). Because the rules (TTY). Docket No. 90–571, Memorandum being deleted are obsolete and without Final Paperwork Reduction Act of 1995 Opinion and Order, 14 FCC Rcd 10553, current legal effect, the Commission also Analysis 10554, paragraphs 10–11 (1999); finds good cause to make these Appointment of the nonsubstantive, editorial revisions of Document DA 11–1649 does not Telecommunications Relay Services the rules effective October 13, 2011. See contain new or modified information Fund Administrator and Composition of 5 U.S.C. 553(d)(3). collection requirements subject to the the TRS Advisory Committee, CC Docket Paperwork Reduction Act of 1995, No. 90–571, Memorandum Opinion and Regulatory Flexibility Act Public Law 104–13. In addition, Order, 10 FCC Rcd 7223, 7224, Because Document DA 11–1649 was therefore, it does not contain any new paragraphs 8–9 (1995). As the or modified information collection adopted without notice and comment, Commission reviewed the performance see 5 U.S.C. 553(b)(3)(B), the Regulatory burden for small business concerns with of the administrator and the Fund after fewer than 25 employees, pursuant to Flexibility Act, 5 U.S.C. 601 et seq., two years of its promulgation, does not apply. the Small Business Paperwork Relief § 64.604(c)(5)(iii)(J) of the Commission’s Act of 2002, Public Law 107–198, see 44 rules is without current legal effect and Ordering Clauses U.S.C. 3506(c)(4). thus may be deleted as obsolete. It is ordered that, effective October 13, Congressional Review Act 2. Document DA 11–1649 also finds that a note in Part 64, Subpart Y of the 2011, Part 64 of the Commission’s rules The Commission will send a copy of Commission’s rules, which establishes is amended, as set forth herein, document DA 11–1649 in a report to be Truth-In-Billing Requirements for pursuant to the authority contained in sent to Congress and the Government Common Carriers, no longer has legal sections 4(i) and 303(r) of the Accountability Office pursuant to the effect. The note following the Communications Act of 1934, as Congressional Review Act. See 5 U.S.C. Commission’s Truth-In-Billing amended, 47 U.S.C. 154(i) and 303(r), 801(a)(1)(A). Requirements, codified at 47 CFR and § 0.231(b) of the Commission’s regulations, 47 CFR 0.231(b). Synopsis 64.2401 of its rules, indicates that certain provisions of the rule are not The Commission’s Consumer and 1. Document DA 11–1649 finds that a effective and have been stayed until Governmental Affairs Bureau, Reference provision of Part 64, Subpart F of the amendments to § 64.2401(a), (d), and (e) Information Center, will not send a copy Commission’s rules regarding the of the Commission’s rules become of document DA 11–1649 or Regulatory Telecommunications Relay Services and effective, pending approval by the Flexibility Act documents to the Chief Related Customer Premises Equipment Office of Management and Budget and Counsel for Advocacy of the Small for Persons with Disabilities no longer the Commission’s publication of a Business Administration because the has legal effect. Section document in the Federal Register Regulatory Flexibility Act does not 64.604(c)(5)(iii)(J) of the Commission’s announcing this approval and the apply. rules provides that the Commission effective date of these amended shall review the Interstate Cost Recovery subsections. The amendments to the List of Subjects in 47 CFR Part 64 Plan (the ‘‘TRS Fund’’) and the TRS noted sections were published in the Fund administrator’s performance after Individuals with disabilities, Federal Register on July 13, 2000, see Telecommunications, Telephone. two years. The administration of the Truth-In-Billing and Billing Format, 65 TRS Fund and the rule mandating a FR 43251, July 13, 2000 (amending 47 Federal Communications Commission. review after an initial two year period CFR 64.2401(a), (d), and (e)), and Joel Gurin, became effective July 26, 1993. See became effective upon approval by the Chief, Consumer and Governmental Affairs Telecommunications Relay Services, 58 Office of Management and Budget on Bureau. FR 39671, July 26, 1993 (amending 47 August 28, 2000. See Truth-In-Billing Rule Changes CFR 64.604). Since § 64.604(c)(5)(iii)(J) and Billing Format, 65 FR 52048, of the Commission’s rules became August 28, 2000 (amending 47 CFR For the reasons discussed in the effective in 1993, the Commission has 64.2401(a), (d), and (e)). preamble, the Federal Communications reviewed the TRS Fund on an annual 3. Accordingly, the stay has been Commission amends 47 CFR part 64 as basis and has modified the plan on lifted and all provisions of the rule are follows: several occasions. See, e.g., currently effective. The note indicating Telecommunications Relay Services and that some provisions have been stayed PART 64—MISCELLANEOUS RULES Speech-to-Speech Services for is no longer accurate. For these reasons, RELATING TO COMMON CARRIERS Individuals with Hearing and Speech the note following § 64.2401 of the Disabilities; Structure and Practices of Commission’s rules is without current ■ 1. The authority citation for part 64 the Video Relay Service Program, CG legal effect and thus may also be deleted continues to read as follows: Docket Nos. 03–123 and 10–51, Order, as obsolete. Authority: 47 U.S.C. 154, 254(k), 227; secs. 76 FR 44326, July 25, 2011 (adopting 4. Accordingly, the Commission 403(b)(2)(B), (c), Pub. L. 104–104, 110 Stat. new compensation rates for various amends these rules by deleting these 56. Interpret or apply 47 U.S.C. 201, 218, 225, forms of TRS to be paid from the TRS provisions that no longer have any legal 226, 228, 254(k), and 620, unless otherwise Fund for the 2011–12 Fund year and the effect. The rule amendments adopted in noted.
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§ 64.604 [Amended] October 4, 2011, for the 2011–2012 October 17, 2011, until 12:01 a.m., local ■ 2. In § 64.604, remove and reserve fishing year (76 FR 61285) due to an time, on June 1, 2012. In order to paragraph (c)(5)(iii)(J). ACL overage in the recreational sector of announce this closure and provide 67,253 lb (30,505 kg), gutted weight in relevant information to interested § 64.2401 [Amended] the 2010–2011 fishing year. Therefore, parties, NMFS will contact state marine ■ 3. In § 64.2401, remove the ‘‘Note to the 2011–2012 recreational ACL for fishery agencies and fish houses, § 64.2401’’. black sea bass in the South Atlantic is announce the closure on NOAA now 341,747 lb (155,014 kg), gutted [FR Doc. 2011–26515 Filed 10–12–11; 8:45 am] Weather Radio, and distribute a fishery weight, effective October 4, 2011, bulletin to provide additional notice to BILLING CODE 6712–01–P through May 31, 2012. the recreational fishermen. The closure Background is intended to prevent overfishing and DEPARTMENT OF COMMERCE Black sea bass are managed increase the likelihood that the current throughout their range. In the South recreational ACL will not be exceeded National Oceanic and Atmospheric Atlantic EEZ, black sea bass are even further. Administration ° ′ managed by the Council from 35 15.19 Classification N. lat., the latitude of Cape Hatteras 50 CFR Part 622 Light, North Carolina, south. From Cape This action responds to the best [Docket No. 0907271173–0629–03] Hatteras Light, North Carolina, through scientific information available recently Maine, black sea bass are managed RIN 0648–XA686 obtained from the fishery. Black sea bass jointly by the Mid-Atlantic Fishery are overfished and are currently in a Snapper-Grouper Fishery of the South Management Council and the Atlantic rebuilding plan, and exceeding the Atlantic; Closure of the 2011–2012 States Marine Fisheries Commission. ACLs could jeopardize the rebuilding Therefore, the closure provisions Recreational Sector for Black Sea Bass plan. The AA finds good cause to waive contained in this notice are applicable in the South Atlantic the requirement to provide prior notice to those vessels harvesting or possessing and opportunity for public comment AGENCY: National Marine Fisheries black sea bass from Key West, Florida, pursuant to the authority set forth at 5 Service (NMFS), National Oceanic and through Cape Hatteras Light, North Atmospheric Administration (NOAA), Carolina. U.S.C. 553(b)(B) as such prior notice Commerce. Regulations effective January 31, 2011 and opportunity for public comment is unnecessary and contrary to the public ACTION: Temporary rule; closure. (75 FR 82280, December 30, 2010), set the recreational ACL for black sea bass interest. Such procedures would be SUMMARY: NMFS closes the recreational in the South Atlantic EEZ and unnecessary because the rule sector for black sea bass in the portion established accountability measures implementing the sector ACL and the of the exclusive economic zone (EEZ) of (AMs), and require NMFS to close the associated requirement for closure of the the South Atlantic through 35°15.19′ N. recreational sector for black sea bass sector when the ACL is met or projected lat., the latitude of Cape Hatteras Light, when the ACL is reached, or is projected to be met has already been subject to North Carolina. NMFS has determined to be reached, by filing a notification to notice and comment, and all that that the recreational annual catch limit that effect with the Office of the Federal remains is to notify the public of the (ACL) for black sea bass has been Register. The AMs state if black sea bass closure. Allowing prior notice and reached. This closure is necessary to are overfished and if recreational opportunity for public comment is protect the black sea bass resource. landings reach or are projected to reach contrary to the public interest because the recreational ACL of 341,747 lb DATES: The closure is effective 12:01 any additional delay in the closure of (155,014 kg), gutted weight, the a.m., local time, October 17, 2011, until the recreational black sea bass sector 12:01 a.m., local time, on June 1, 2012. Assistant Administrator for Fisheries, NOAA (AA), will close the recreational could result in the recreational ACL FOR FURTHER INFORMATION CONTACT: sector for black sea bass for the being exceeded, which would result in Catherine Bruger, telephone 727–824– remainder of the fishing year (50 CFR another reduced ACL for the 5305, fax 727–824–5308, e-mail 622.49(b)(5)(ii). On, and after, the recreational sector in the 2012–2013 [email protected]. effective date of the closure, the bag and fishing season, and would produce SUPPLEMENTARY INFORMATION: The possession limit of black sea bass in or additional adverse economic impacts for snapper-grouper fishery of the South from the South Atlantic EEZ is zero. black sea bass fishermen. Atlantic is managed under the Fishery This zero bag and possession limit also For the aforementioned reasons, the Management Plan for the Snapper- applies in the South Atlantic on board AA also finds good cause to waive the Grouper Fishery of the South Atlantic a vessel for which a valid Federal 30-day delay in the effectiveness of this Region (FMP). The FMP was prepared charter vessel/headboat permit for action under 5 U.S.C. 553(d)(3). by the South Atlantic Fishery South Atlantic snapper-grouper has Management Council (Council) and is been issued, without regard to where This action is taken under 50 CFR implemented under the authority of the such species were harvested, i.e., in 622.43(a) and is exempt from review Magnuson-Stevens Fishery State or Federal waters. under Executive Order 12866. Conservation and Management Act Based on current statistics, NMFS has Authority: 16 U.S.C. 1801 et seq. (Magnuson-Stevens Act) by regulations determined that the recreational ACL of Dated: October 7, 2011. at 50 CFR part 622. These regulations 341,747 lb (155,014 kg), gutted weight, set the recreational ACL for black sea for black sea bass has been reached. Steven Thur, bass in the South Atlantic at 409,000 lb Accordingly, NMFS is closing the Acting Director, Office of Sustainable (185,519 kg), gutted weight. However, recreational sector for black sea bass in Fisheries, National Marine Fisheries Service. NMFS published a temporary rule on the portion of the South Atlantic EEZ [FR Doc. 2011–26499 Filed 10–7–11; 4:15 pm] October 4, 2011, which implemented a through Cape Hatteras Light, North BILLING CODE 3510–22–P reduced recreational ACL beginning Carolina, from 12:01 a.m., local time,
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DEPARTMENT OF COMMERCE Stevens Fishery Conservation and Classification Management Act. Regulations governing National Oceanic and Atmospheric fishing by U.S. vessels in accordance This action responds to the best Administration with the FMP appear at subpart H of 50 available information recently obtained CFR part 600 and 50 CFR part 679. from the fishery. The Assistant 50 CFR Part 679 Regulations governing sideboard Administrator for Fisheries, NOAA (AA), finds good cause to waive the [Docket No. 101126522–0640–02] protections for GOA groundfish fisheries appear at subpart B of 50 CFR requirement to provide prior notice and RIN 0648–XA759 part 680. opportunity for public comment The 2011 Pacific cod TAC pursuant to the authority set forth at 5 Pacific Cod by Vessels Harvesting U.S.C. 553(b)(B) as such requirement is Pacific Cod for Processing by the apportioned to vessels harvesting Pacific cod for processing by the inshore impracticable and contrary to the public Inshore Component in the Central interest. This requirement is Regulatory Area of the Gulf of Alaska component of the Central Regulatory Area of the GOA is 36,326 metric tons impracticable and contrary to the public AGENCY: National Marine Fisheries (mt), as established by the final 2011 interest as it would prevent NMFS from Service (NMFS), National Oceanic and and 2012 harvest specifications for responding to the most recent fisheries Atmospheric Administration (NOAA), groundfish of the GOA (76 FR 11111, data in a timely fashion and would Commerce. March 1, 2011). delay the directed fishing closure of Pacific cod by vessels harvesting Pacific ACTION: Temporary rule; closure. In accordance with § 679.20(d)(1)(i), cod for processing by the inshore the Administrator, Alaska Region, component in the Central Regulatory SUMMARY: NMFS is prohibiting directed NMFS (Regional Administrator) has Area of the GOA. NMFS was unable to fishing for Pacific cod by vessels determined that the 2011 Pacific cod publish a notice providing time for harvesting Pacific cod for processing by TAC apportioned to vessels harvesting public comment because the most the inshore component in the Central Pacific cod for processing by the inshore recent, relevant data only became Regulatory Area of the Gulf of Alaska component of the Central Regulatory available as of October 6, 2011. (GOA). This action is necessary to Area of the GOA will soon be reached. prevent exceeding the 2011 Pacific total Therefore, the Regional Administrator is The AA also finds good cause to allowable catch (TAC) apportioned to establishing a directed fishing waive the 30-day delay in the effective vessels harvesting Pacific cod for allowance of 34,826 mt, and is setting date of this action under 5 U.S.C. processing by the inshore component of aside the remaining 1,500 mt as bycatch 553(d)(3). This finding is based upon the Central Regulatory Area of the GOA. to support other anticipated groundfish the reasons provided above for waiver of DATES: Effective 1200 hrs, Alaska local fisheries. In accordance with prior notice and opportunity for public time (A.l.t.), October 9, 2011, through § 679.20(d)(1)(iii), the Regional comment. 2400 hrs, A.l.t., December 31, 2011. Administrator finds that this directed This action is required by § 679.20 FOR FURTHER INFORMATION CONTACT: Josh fishing allowance has been reached. and is exempt from review under Keaton, 907–586–7228. Consequently, NMFS is prohibiting Executive Order 12866. directed fishing for Pacific cod by SUPPLEMENTARY INFORMATION: NMFS Authority: 16 U.S.C. 1801 et seq. manages the groundfish fishery in the vessels harvesting Pacific cod for GOA exclusive economic zone processing by the inshore component in Dated: October 7, 2011. according to the Fishery Management the Central Regulatory Area of the GOA. Steven Thur, Plan for Groundfish of the Gulf of After the effective date of this closure Acting Director, Office of Sustainable Alaska (FMP) prepared by the North the maximum retainable amounts at Fisheries, National Marine Fisheries Service. Pacific Fishery Management Council § 679.20(e) and (f) apply at any time [FR Doc. 2011–26506 Filed 10–7–11; 4:15 pm] under authority of the Magnuson- during a trip. BILLING CODE 3510–22–P
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Proposed Rules Federal Register Vol. 76, No. 198
Thursday, October 13, 2011
This section of the FEDERAL REGISTER B01M, U.S. Nuclear Regulatory may be found in ADAMS under contains notices to the public of the proposed Commission, Washington, DC 20555– Accession No. ML11068A030. issuance of rules and regulations. The 0001. • Federal Rulemaking Web Site: purpose of these notices is to give interested • Fax comments to: RADB at 301– Public comments and supporting persons an opportunity to participate in the 492–3446. materials related to this notice can be rule making prior to the adoption of the final found at http://www.regulations.gov by rules. SUPPLEMENTARY INFORMATION: searching on Docket ID NRC–2011– Submitting Comments and Accessing 0237. Information NUCLEAR REGULATORY FOR FURTHER INFORMATION CONTACT: COMMISSION Comments submitted in writing or in Timothy Kobetz, Reactor Inspection electronic form will be posted on the Branch, Division of Inspections and 10 CFR Part 50 NRC Web site and on the Federal Regional Support, Office of Nuclear [NRC–2011–0237] rulemaking Web site, http:// Reactor Regulation, U.S. Nuclear www.regulations.gov. Because your Regulatory Commission, Washington, Event Reporting Guidelines comments will not be edited to remove DC 20555–0001; telephone: 301–415– any identifying or contact information, 1932, e-mail: [email protected]. AGENCY: Nuclear Regulatory the NRC cautions you against including Commission. any information in your submission that Background ACTION: Draft NUREG; request for you do not want to be publicly The NUREG–1022 contains guidelines comment. disclosed. that the NRC staff considers acceptable The NRC requests that any party for use in meeting the reporting SUMMARY: The U.S. Nuclear Regulatory soliciting or aggregating comments requirements of Title 10 of the Code of Commission (NRC or the Commission) received from other persons for Federal Regulations (10 CFR) 50.72 and is requesting comments on Draft submission to the NRC inform those 10 CFR 50.73. Revision 3 to NUREG– NUREG–1022, Revision 3, ‘‘Event persons that the NRC will not edit their 1022 incorporates revisions to the Reporting Guidelines: 10 CFR 50.72 and comments to remove any identifying or guidelines for the purpose of 50.73’’. The NUREG–1022 contains contact information, and therefore, they clarification. The NRC held a public guidelines that the NRC staff considers should not include any information in meeting on June 8 and 9, 2010, with acceptable for use in meeting the event their comments that they do not want internal and external stakeholders to reporting requirements for operating publicly disclosed. solicit comments on identified issues nuclear power reactors. Revision 3 to You can access publicly available with NUREG–1022, Revision 2, as well NUREG–1022 incorporates revisions to documents related to this document as to identify new issues (see ADAMS the guidelines for the purpose of using the following methods: Accession Nos. ML101241083 and clarification. • NRC’s Public Document Room ML101720219 for additional DATES: Submit comments by December (PDR): The public may examine and information). A teleconference meeting 12, 2011. Comments received after this have copied, for a fee, publicly available with external stakeholders was held on date will be considered if it is practical documents at the NRC’s PDR, Room O1– July 19, 2010, to clarify some items to do so, but the Commission is able to F21, One White Flint North, 11555 listed in the June public meeting ensure consideration only for comments Rockville Pike, Rockville, Maryland summary (see ADAMS Accession No. received on or before this date. 20852. ML102170301 for additional ADDRESSES: Please include Docket ID • NRC’s Agencywide Documents information). The NRC held another NRC–2011–0237 in the subject line of Access and Management System public meeting on October 14, 2010, your comments. For additional (ADAMS): Publicly available documents with internal and external stakeholders instructions on submitting comments created or received at the NRC are to discuss the NRC’s disposition of the and instructions on accessing available online in the NRC Library at previously identified items (see ADAMS documents related to this action, see http://www.nrc.gov/reading-rm/ Accession Nos. ML102630270 and ‘‘Submitting Comments and Accessing adams.html. From this page, the public ML102940281 for additional Information’’ in the SUPPLEMENTARY can gain entry into ADAMS, which information). In addition, external INFORMATION section of this document. provides text and image files of the stakeholders submitted documents to You may submit comments by any one NRC’s public documents. If you do not the NRC for consideration. Documents of the following methods: have access to ADAMS or if there are were submitted on July 20, 2010 • Federal Rulemaking Web Site: Go to problems in accessing the documents (ADAMS Accession No. ML101930338), http://www.regulations.gov and search located in ADAMS, contact the NRC’s August 8, 2010 (ADAMS Accession No. for documents filed under Docket ID PDR reference staff at 1–800–397–4209, ML102230269), August 21, 2010 NRC–2011–0237. Address questions 301–415–4737, or by e-mail to (ADAMS Accession No. ML102360197), about NRC dockets to Carol Gallagher, [email protected]. Draft NUREG– and October 29 and November 10, 2010 telephone: 301–492–3668; e-mail: 1022, Revision 3 may be found in the (ADAMS Accession No. ML103190310). [email protected]. Agencywide Documents Access and A discussion of the changes in Draft • Mail comments to: Cindy Bladey, Management System (ADAMS) under NUREG–1022, Revision 3, may be found Chief, Rules, Announcements, and Accession No. ML11273A065. The NRC in the ‘‘Discussion of Changes’’ Directives Branch (RADB), Office of staff has also prepared an accompanying document (ADAMS Accession No. Administration, Mail Stop: TWB–05– ‘‘Discussion of Changes’’ document that ML11068A030). Items in Draft NUREG–
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1022, Revision 3, that are underlined are Guidelines of the U.S. Nuclear SUMMARY: This document announces an new and not found in Revision 2, and Regulatory Commission,’’ issued open meeting of two Negotiated items that have a strikethrough are being September 2004 (ADAMS Accession No. Rulemaking Working Groups; one deleted from Revision 2. Although the ML042820192) sets forth the NRC’s concerning Liquid Immersed and underlines and strikethroughs are policy for the preparation and the Medium-Voltage Dry-Type and the included in the draft document, the contents of regulatory analyses. As second addressing Low-Voltage Dry- staff’s intention is to remove them upon discussed in Section 2.2 of NUREG/BR– Type Distribution Transformers. The final publication of NUREG–1022, 0058, Revision 4, mechanisms used by Liquid Immersed and Medium-Voltage Revision 3. Any changes in the draft the NRC staff to establish or Dry-Type Group (MV Group) and the that are not discussed in the communicate generic requirements, Low-Voltage Dry-Type Group (LV ‘‘Discussion of Changes’’ document are guidance, requests, or staff positions Group) are working groups within the to be considered editorial in nature and that would affect a change in the use of Appliance Standards Subcommittee of should not be construed to have any resources by its licensees should the Efficiency and Renewables Advisory regulatory or technical significance. include an accompanying regulatory Committee (ERAC). The purpose of the Backfit Analysis analysis. The changes found in Draft MV and LV Groups is to discuss and, if NUREG–1022, Revision 3, can be possible, reach consensus on a proposed The NRC has determined that the construed as offering new positions or rule for regulating the energy efficiency Backfit Rule, 10 CFR 50.109, possibly affecting licensee resources. As of distribution transformers, as ‘‘Backfitting,’’ does not apply to the a result, the staff determined that it authorized by the Energy Policy issuance of the revised guidance in should perform a regulatory analysis in Conservation Act (EPCA) of 1975, as NUREG–1022, Revision 3. The revised order to provide complete disclosure of amended, 42 U.S.C. 6313(a)(6)(C) and guidance in NUREG–1022, Revision 3, the relevant information supporting 6317(a). addresses compliance with the decisions associated with changes found DATES: Tuesday, November 8, 2011; information collection and reporting in Draft NUREG–1022, Revision 3. The requirements in 10 CFR 50.72 and 10 9 a.m.–6 p.m., Wednesday, November 9, regulatory analysis can be found in 2011; 9 a.m.–6 p.m. CFR 50.73. The Backfit Rule does not ADAMS under Accession No. apply to information collection and ML11116A168. ADDRESSES: The meeting on November reporting requirements. Therefore, the 8, 2011, will be held at the Edison NRC has not prepared a backfit analysis Public Comments Electric Institute, 701 Pennsylvania for the issuance of Revision 3 to This document requests comments Avenue, NW., Washington, DC 20004– NUREG–1022. from interested members of the public 2696. In addition, the NRC has determined by December 12, 2011. After evaluating The meeting on November 9, 2011, that issuance of the revised guidance in the comments received, the staff will will be held at the U.S. Department of NUREG–1022, Revision 3, is not either reconsider the proposed change Energy, 950 L’Enfant Plaza, Room 6097– inconsistent with any of the issue or announce the availability of the 6098, Washington, DC 20024. finality provisions in 10 CFR part 52, change in a subsequent document FOR FURTHER INFORMATION CONTACT: John ‘‘Licenses, certifications, and approvals published in the Federal Register Cymbalsky, U.S. Department of Energy, for nuclear power plants.’’ Those issue (perhaps with some changes as a result Office of Building Technologies (EE–2J), finality provisions do not apply to of public comments). 1000 Independence Avenue, SW., information collection and reporting Washington, DC 20585–0121. obligations imposed on operators of Dated at Rockville, Maryland, this 30th day of September 2011. Telephone: (202) 287–1692. E-mail: nuclear power plants. In addition, the [email protected]. issue finality provisions in 10 CFR part For the Nuclear Regulatory Commission. 52 do not apply to prospective Timothy Kobetz, SUPPLEMENTARY INFORMATION: applicants. As of the issuance of this Branch Chief, Reactor Inspection Branch, Background: DOE has decided to use revised guidance, there are no holders of Division of Inspections and Regional Support, the negotiated rulemaking process to combined licenses under 10 CFR part Office of Nuclear Reactor Regulation. develop proposed energy efficiency 52. Hence, there are no entities [FR Doc. 2011–26419 Filed 10–12–11; 8:45 am] standards for distribution transformers. currently protected by 10 CFR part 52 BILLING CODE 7590–01–P The primary reasons for using the issue finality provisions relevant to negotiated rulemaking process for operation (i.e., the period after the developing a proposed Federal standard Commission has made the finding under DEPARTMENT OF ENERGY is that stakeholders strongly support a 10 CFR 52.103(g)). Therefore, the NRC is consensual rulemaking effort and DOE not precluded from issuing NUREG– 10 CFR Part 431 believes such a regulatory negotiation 1022, Revision 3, by any of the 10 CFR process will be less adversarial and Part 52 issue finality provisions. RIN 1904–AC62 better suited to resolving the complex technical issues raised by this Regulatory Analysis Efficiency and Renewables Advisory rulemaking. An important virtue of The NRC performs regulatory analyses Committee, Appliance Standards negotiated rulemaking is that it allows to support many NRC actions that affect Subcommittee, Negotiated Rulemaking expert dialog that is much better than nuclear power reactor and nonpower Subcommittee/Working Group for traditional techniques at getting the reactor licensees. The regulatory Liquid-Immersed and Medium- and facts and issues right and will result in analysis process is intended to be an Low-Voltage Dry-Type Distribution a proposed rule that will effectively integral part of the NRC’s Transformers reflect Congressional intent. decisionmaking that systematically AGENCY: Department of Energy, Office of A regulatory negotiation will enable provides complete disclosure of the Energy Efficiency and Renewable DOE to engage in direct and sustained relevant information supporting a Energy. dialog with informed, interested, and regulatory decision. The NUREG/BR– affected parties when drafting the ACTION: Notice of open meeting. 0058, Revision 4, ‘‘Regulatory Analysis proposed regulation that is then
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presented to the public for comment. statement with the committee, you may FOR FURTHER INFORMATION CONTACT: Ms. Gaining this early understanding of all do so either by submitting a hard or Amy L. Rothstein, Assistant General parties’ perspectives allows DOE to electronic copy before or after the Counsel, or Ms. Jessica Selinkoff, address key issues at an earlier stage of meeting. Electronic copy of written Attorney, 999 E Street, NW., the process, thereby allowing more time statements should be e-mailed to Washington, DC 20463, (202) 694–1650 for an iterative process to resolve issues. [email protected]. or (800) 424–9530. A rule drafted by negotiation with Minutes: The minutes of the meeting SUPPLEMENTARY INFORMATION: The informed and affected parties is more will be available for public review at Federal Election Commission is likely to maximize benefits while http://www.erac.energy.gov. publishing this Advance Notice of minimizing unnecessary costs than one Issued in Washington, DC, on October 5, Proposed Rulemaking seeking conceived or drafted without the 2011. comments on whether and how the opportunity for sustained dialog among LaTanya R. Butler, Commission should revise its rules at 11 interested and expert parties. DOE CFR 110.11 regarding disclaimers on anticipates that there will be a need for Acting Deputy Committee Management Officer. Internet communications. Specifically, fewer substantive changes to a proposed the Commission is considering whether [FR Doc. 2011–26479 Filed 10–12–11; 8:45 am] rule developed under a regulatory to modify the disclaimer requirements negotiation process prior to the BILLING CODE 6450–01–P for certain Internet communications, or publication of a final rule. to provide exceptions thereto, consistent To the maximum extent possible, with the Federal Election Campaign Act, consistent with the legal obligations of FEDERAL ELECTION COMMISSION 2 U.S.C. 431 et seq., as amended (‘‘the the Department, DOE will use the Act’’). In the event the Commission consensus of the advisory committee or 11 CFR Part 110 adopts a final rule on this issue, given subcommittee as the basis for the rule the timeframe of the current election the Department proposes for public [Notice 2011–14] cycle, the Commission does not notice and comment. Internet Communication Disclaimers anticipate the rule would become Purpose of the Meeting: To continue effective for the 2011–2012 election the process of seeking consensus on a AGENCY: Federal Election Commission. cycle. proposed rule for setting standards for ACTION: Advance Notice of Proposed the energy efficiency of liquid immersed 1. Current Statutory and Regulatory Rulemaking. and medium- and low-voltage dry type Framework distribution transformers, as authorized SUMMARY: The Federal Election Under the Act and Commission by the Energy Policy Conservation Act Commission requests comments on regulations, a ‘‘disclaimer’’ is a (EPCA) of 1975, as amended, 42 U.S.C. whether to begin a rulemaking to revise statement that must appear on certain 6313(a)(6)(C) and 6317(a). its regulations concerning disclaimers communications to identify who paid Tentative Agenda: The MV Group on certain Internet communications for them and, where applicable, whether will meet at 9:00 a.m. and will conclude and, if so, what changes should be made the communications were authorized by at 6 p.m. on Tuesday, November 8, to those rules. The Commission intends a candidate. 2 U.S.C. 441d(a); 11 CFR 2011. The LV Group will meet at 9 a.m. to review the comments received as it 110.11. See also Explanation and through 6 p.m. on Wednesday, decides what revisions, if any, it will Justification for Final Rules on November 9, 2011. The tentative agenda propose making to these rules. Disclaimers, Fraudulent Solicitations, for the meetings includes continued Civil Penalties, and Personal Use of discussion regarding the analyses of DATES: Comments must be received on or before November 14, 2011. The Campaign Funds, 67 FR 76962, 76962 alternate standard levels and negotiation (Dec. 13, 2002) (‘‘2002 Disclaimer Commission will determine at a later efforts to address the perceived issues. E&J’’).1 With some exceptions, the Act date whether to hold a public hearing Public Participation: Members of the and Commission regulations require on this Notice. If a hearing is to be held, public are welcome to observe the disclaimers for public communications: the Commission will publish a notice in business of the meetings and to make (1) Made by a political committee; (2) the Federal Register announcing the comments related to the issues being that expressly advocate the election or date and time of the hearing. discussed at appropriate points, when defeat of a clearly identified Federal called on by the moderator. The ADDRESSES: All comments must be in candidate; or (3) that solicit a facilitator will make every effort to hear writing. Comments may be submitted contribution. 2 U.S.C. 441d(a); 11 CFR the views of all interested parties within electronically via the Commission’s 110.11(a). In addition to public limits required for the orderly conduct Web site at http://www.fec.gov/fosers. communications by political of business. To attend the meeting and/ Commenters are encouraged to submit committees, ‘‘electronic mail of more or to make oral statements regarding any comments electronically to ensure than 500 substantially similar of the items on the agenda, e-mail timely receipt and consideration. communications when sent by a [email protected]. Please include ‘‘MV Alternatively, comments may be political committee * * * and all and LV Work Group 110811’’ in the submitted in paper form. Paper Internet Web sites of political subject line of the message. Please be comments must be sent to the Federal committees available to the general sure to specify which working group Election Commission, Attn.: Amy L. public’’ also must have disclaimers. 11 discussion you will be attending. In the Rothstein, Assistant General Counsel, CFR 110.11(a). e-mail, please provide your name, 999 E Street, NW., Washington, DC While the term ‘‘public organization, citizenship and contact 20463. All comments must include the communication’’ generally does not information. Space is limited. full name and postal service address of include Internet communications, it Participation in the meeting is not a the commenter, and of each commenter does include ‘‘communications placed prerequisite for submission of written if filed jointly, or they will not be for a fee on another person’s Web site.’’ comments. ERAC invites written considered. The Commission will post comments from all interested parties. If comments on its Web site at the 1 Documents related to Commission rulemakings you would like to file a written conclusion of the comment period. are available at http://www.fec.gov/fosers.
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11 CFR 100.26. Thus, communications impracticable exceptions, certain 915, 78 U.S.L.W. 4078 (2010) (internal placed for a fee on another person’s Web advertisements placed for a fee on quotations and alterations removed). site are subject to the disclaimer another person’s Web site. In the first of Given the development and requirements. See 11 CFR 110.11(a). these advisory opinion requests, Google, proliferation of the Internet as a mode The content of the disclaimer that Inc. asked the Commission if it could of political communication, and the must appear on a given communication sell text advertisements consisting of expectation that continued depends on who authorized and paid approximately 95 characters to technological advances will further for the communication. If a candidate, candidates and political committees if enhance the quantity of information an authorized committee of a candidate, those advertisements did not include available to voters online and through or an agent of either pays for and disclaimers. Google proposed that users other technological means, the authorizes the communication, then the would see a disclaimer by clicking on Commission welcomes comments on disclaimer must state that the the advertisement and viewing the whether and how it should amend its communication ‘‘has been paid for by disclaimer on the advertisement’s disclaimer requirements for public the authorized political committee.’’ 11 landing page. See Advisory Opinion communications on the Internet to CFR 110.11(b)(l); see also 2 U.S.C. Request 2010–19 (Google).2 While the provide flexibility consistent with their 441d(a)(1). If a public communication is Commission did not agree on the reason purpose. paid for by someone else, but is for its decision, it concluded that such 3. Commission Regulations Concerning authorized by a candidate, an advertisements were not in violation of Internet Communications authorized committee of a candidate, or the Act. See Advisory Opinion 2010–19 an agent of either, then the disclaimer (Google). The Commission has long recognized must state who paid for the In the second advisory opinion the vital role of the Internet and communication and that the request on this issue, Facebook asked if electronic communications in election communication is authorized by the its small, character-limited campaigns. The Commission first candidate, authorized committee of the advertisements (ranging from zero to addressed Internet disclaimers in 1995 candidate, or an agent of either. 11 CFR 160 characters) qualified for either the when it stated that ‘‘Internet 110.11(b)(2); see also 2 U.S.C. small items or impracticable exception communications and solicitations that 441d(a)(2). If the communication is not to the disclaimer requirements. See constitute general public political authorized by a candidate, an Advisory Opinion Request 2011–09 advertising require disclaimers.’’ See authorized committee of a candidate, or (Facebook). The Commission could not Explanation and Justification for Final an agent of either, then the disclaimer approve an answer by the required four Rules on Communications Disclaimer must ‘‘clearly state the full name and affirmative votes and therefore was Requirements, 60 FR 52069, 52071 (Oct. permanent street address, telephone unable to render an advisory opinion to 5, 1995) (‘‘1995 Disclaimer E&J’’). number, or World Wide Web address of Facebook. That same year, the Commission the person who paid for the In the course of considering these considered two advisory opinion communication, and that the advisory opinion requests, the requests regarding the application of the communication is not authorized by any Commission received one comment Act to Internet solicitations of campaign candidate or candidate’s committee.’’ 11 from the public urging the Commission contributions. See Advisory Opinions CFR 110.11(b)(3); see also 2 U.S.C. to undertake a rulemaking to address 1995–35 (Alexander for President) and 441d(a)(3). Every disclaimer ‘‘must be the disclaimer requirements in light of 1995–09 (NewtWatch). The Commission presented in a clear and conspicuous technological developments in Internet determined that Internet solicitations manner, to give the reader, observer, or advertising. The Commission is now are general public political listener adequate notice of the identity’’ considering whether to issue an NPRM advertisements and, as such, they ‘‘are of the communication’s sponsor. 11 CFR to propose amending its rules in this permissible under the [Act] provided 110.11(c)(1). area. The Commission seeks to provide that certain requirements, including the Commission regulations contain ‘‘much needed flexibility to ensure that use of appropriate disclaimers, are met.’’ limited exceptions to the general the regulated community is able to take Advisory Opinion 1995–35 disclaimer requirements. For example, advantage of rapidly evolving (NewtWatch). disclaimers are not required for technological innovations, while In 2002, Congress enacted the communications placed on ‘‘[b]umper ensuring that ‘necessary precautions’ are Bipartisan Campaign Reform Act of stickers, pins, buttons, pens, and similar in place.’’ Advisory Opinion 2007–30 2002, Public Law 107–155, 116 Stat. 81 small items upon which the disclaimer (Dodd); see also Advisory Opinion (2002) (‘‘BCRA’’). In BCRA, Congress cannot be conveniently printed.’’ 11 1999–09 (Bradley) (explaining that it is added new specificity to the disclaimer CFR 110.11(f)(1)(i) (the ‘‘small items the Commission’s practice to requirements, expanded the scope of exception’’). Nor are disclaimers ‘‘interpret[] the Act and its regulations communications covered by the required for ‘‘[s]kywriting, water towers, in a manner consistent with disclaimer requirements, and enacted wearing apparel, or other means of contemporary technological innovations ‘‘stand by your ad’’ requirements. displaying an advertisement of such a * * * where the use of the technology Congress also added a new definition of nature that the inclusion of a disclaimer would not compromise the intent of the the term ‘‘public communication.’’ See would be impracticable.’’ 11 CFR Act or regulations.’’). The Supreme 2 U.S.C. 431(22) and 441d; see also 2002 110.11(f)(1)(ii) (the ‘‘impracticable Court has explained that the disclaimers Disclaimer E&J, 67 FR at 76962. In implementing BCRA, the exception’’). See also Advisory Opinion required by 2 U.S.C. 441d ‘‘provide the Commission promulgated a new 2002–09 (Target Wireless). electorate with information and insure definition of ‘‘public communication’’ that the voters are fully informed about 2. Recent Developments Concerning that excluded all communications over the person or group who is speaking.’’ Internet Advertisements the Internet. See Explanation and Citizens United v. FEC, 130 S.Ct. 876, The Commission recently considered Justification for Final Rules on two advisory opinion requests seeking 2 Documents related to Commission advisory Prohibited and Excessive Contributions: to exempt from the disclaimer opinions are available at http://www.fec.gov/ Non-Federal Funds or Soft Money, 67 requirements, under the small items or searchao. FR 49064, 49111 (July 29, 2002). The
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Commission also promulgated new applications for mobile devices to satisfy the disclaimer requirement? If rules to implement BCRA’s changes to (‘‘apps’’), to disseminate and receive so, how should the Commission the disclaimer provisions of the Act. See campaign and other electoral approach disclaimer requirements for 2002 Disclaimer E&J, 67 FR at 76962. information. The Commission also links in advertisements that direct The new rules applied disclaimer invites commenters to address the ways persons to Web sites without requirements to political committee in which the Internet and other disclaimers or to Web sites owned or Web sites and the distribution of more technologies present challenges in operated by persons other than the than 500 substantially similar complying with the disclaimer person paying for the advertisement? unsolicited e-mails. Other than these requirements under the existing rules. two specific types of Internet-based The Commission is interested in The Commission is also interested in activities, however, Internet comments that address possible commenters’ data or experiences in communications were not subject to the modifications, such as by technological purchasing, selling, or distributing small disclaimer requirements. Id. at 76963– alternatives, to the current disclaimer or character-limited advertisements 64. requirements. For example, the online. The Commission is interested in The Commission adopted its current California Fair Political Practices comments relating to the appropriate rules governing Internet Commission (‘‘CFPPC’’) recently application of either the small items or communications in 2006 in response to amended its regulations regarding paid impracticable exception from the the decision of the U.S. District Court campaign advertisements to address the disclaimer requirements to small or for the District of Columbia in Shays v. issue of disclaimers in electronic media character-limited Internet FEC. See Shays v. FEC, 337 F.Supp.2d advertisements that are limited in size. advertisements. The Commission is also 28 (D.D.C. 2004) (‘‘Shays I’’); see also See Cal. Code Regs. tit. 2, sec. 18450.4 interested in comments addressing the Explanation and Justification for Final (effective December 2010). Instead of possibility of developing a new Rules on Internet Communications, 71 exempting all small communications exception for small or character-limited FR 18589, 18589 (Apr. 12, 2006) (‘‘2006 from the disclaimer requirements, Internet advertisements that might be Internet E&J’’). That decision held, CFPPC’s new regulation provides that more appropriate for the medium than among other things, that the small advertisements may use Commission could not wholly exclude technological features such as rollover the existing regulatory exceptions. The Internet activity from the definition of displays, links to a Web page, or ‘‘other Commission is interested in learning ‘‘public communication.’’ technological means’’ to meet the what proportion of Internet political Following the Shays I decision, the requirements. Id. at sec. advertising might be affected by such a Commission added ‘‘Internet 18450.4(b)(3)(G)(1). The California disclaimer exception. The Commission communications placed on another regulation contains the following is also interested in comments person’s Web site for a fee’’ to the examples of ‘‘limited’’ size addressing what role Internet media regulatory definition of ‘‘public advertisements: a ‘‘micro bar,’’ a ‘‘button providers’ usual and normal advertising communication.’’ See 11 CFR 100.26. ad,’’ a paid text advertisement under model should play in the Commission’s Under the new definition, ‘‘when 500 characters, or a small picture or consideration of disclaimer someone such as an individual, political graphic link. Id. The California requirements. committee, labor organization or regulation further provides that, ‘‘In Finally, the Commission welcomes corporation pays a fee to place a banner, electronic media advertisements whose comments on any other aspect of the video, or pop-up advertisement on size, space, or character limit issues addressed in this Notice. Given another person’s Web site, the person constraints (i.e., SMS text message) paying makes a ‘public render it impracticable to include the the speed at which technological communication.’ ’’ 2006 Internet E&J at full disclosure information * * * the advances are developing, the 18594. Furthermore, ‘‘the placement of candidate or committee sending the Commission welcomes comments that advertising on another person’s Web site mass mailing may provide abbreviated address possible regulatory approaches for a fee includes all potential forms of advertisement disclosure containing at that might minimize the need for serial advertising, such as banner least the committee’s [Fair Political revisions to the Commission’s rules in advertisements, streaming video, popup Practices Commission number] and order to adapt to new or emerging advertisements, and directed search when technologically possible a link to Internet technology in the future. results.’’ Id. At the same time, however, the Web page on the Secretary of State’s Additionally, the Commission invites the Commission confirmed that the Web site displaying the committee’s comment on whether there are other ‘‘vast majority of Internet campaign finance information, if regulations that the Commission should communications * * * remain free from applicable.’’ Id. at sec. consider revising in light of new or campaign finance regulation.’’ Id. at 18450.4(b)(3)(G)(4). Should the emerging Internet technology. 18590. Because the disclaimer Commission consider abbreviated requirement ‘‘incorporate[d] the revised advertisement disclosure for Internet Dated: October 6, 2011. definition of ‘public communication,’ ’’ advertisements? The Commission On behalf of the Commission. Internet communications placed for a invites comments that explore the Cynthia L. Bauerly, fee on another person’s Web site became technological and physical Chair, Federal Election Commission. subject to the disclaimer requirement. characteristics that would define a [FR Doc. 2011–26414 Filed 10–12–11; 8:45 am] Id. at 18589–90; see also id. at 18594. ‘‘small’’ Internet advertisement. In the Google and Facebook advisory BILLING CODE 6715–01–P 4. Possible Revisions to Commission opinion requests discussed above, the Regulations facts indicated that some Internet The Commission invites comments advertisements link to a Web site or that address the ways that campaigns, Web page that contains a disclaimer that political committees, voters, and others complies with the Act and Commission are using, or may soon use, the Internet regulations. Should the Commission and other technologies, including consider allowing such a link, by itself,
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FEDERAL ELECTION COMMISSION Once the Probable Cause Brief is business days of the respondent’s received by a respondent, the receipt of the OGC Notice. 11 CFR Part 111 respondent has the opportunity to file, 4. Within five business days of receipt [Notice 2011–15] within 15 days, a brief (Reply Brief) of a written request from a respondent, responding to the Probable Cause Brief. the Commission may, in its sole Agency Procedure Following the 11 CFR 111.16(c). Additionally, discretion, exercised by four affirmative Submission of Probable Cause Briefs pursuant to a procedural rule adopted votes, allow the respondent to address by the Office of General Counsel by the Commission in 2007, a in writing the new points raised by the respondent may, as part of the Reply OGC Notice. If the Commission AGENCY: Federal Election Commission. Brief, request a probable cause hearing approves the request, the Commission ACTION: Notice of agency procedure. (Probable Cause Hearing) before the shall provide the respondent with a date Commission. See Procedural Rules for by which the Supplemental Reply Brief SUMMARY: The Federal Election Probable Cause Hearings, 72 FR 64919 must be filed, which shall in no event Commission is establishing an agency (Nov. 19, 2007). The Commission will exceed 10 calendar days from procedure to formalize the agency’s grant a request for a Probable Cause notification to the respondent of the practice in the latter stages of Probable Hearing if any two Commissioners agree Commission’s approval. Where Cause process in enforcement matters that a hearing would help resolve necessary, the Commission reserves the brought under the Federal Election significant or novel legal issues, or right to request from a Respondent an Campaign Act of 1971, as amended significant questions about the agreement tolling any deadline, (FECA). application of the law to the facts. including any statutory or other DATES: Effective October 28, 2011. Following the filing of the Reply Brief deadline found in 11 CFR part 111. Any FOR FURTHER INFORMATION CONTACT: and the Probable Cause Hearing, if there request that is not approved by the Kathleen Guith, Acting Associate is one, OGC must, pursuant to 11 CFR Commission within five business days General Counsel, or Joshua Smith, 111.16(d), then advise the Commission, of the Commission’s receipt of the Attorney, 999 E Street, NW., by a written notice (OGC Notice), as to request shall be deemed denied without Washington, DC 20463, (202) 694–1650 whether OGC intends to proceed with further action by the Commission. or (800) 424–9530. its recommendation or to withdraw the 5. All requests and Supplemental SUPPLEMENTARY INFORMATION: recommendation from Commission Reply Briefs should be directed to the consideration. Commission Secretary via e-mail I. Background The Commission hereby adopts the ([email protected]) or fax (202–208– The Federal Election Commission following procedures with respect to the 3333). Upon receipt of a request, the (Commission) is establishing an agency following issues: (a) Whether or not Commission Secretary shall forward the procedure to formalize the agency’s OGC must provide a copy of the OGC request or brief to each Commissioner practice in the latter stages of the Notice to the respondent and (b) if the and the General Counsel. Absent good Probable Cause process when, pursuant OGC Notice contains any new argument, cause, to be determined at the sole to 11 CFR 111.16(d) of the statement, or facts, or contains new discretion of the Commission, exercised Commission’s regulations, the Office of replies to all or any of the arguments by four affirmative votes, late requests General Counsel (OGC) advises the contained in the Reply Brief, and, if a will not be accepted. Commission in writing as to whether or Probable Cause Hearing was conducted, III. Conclusion not it intends to proceed with a those occurring at the hearing, whether Probable Cause recommendation. the respondent should have an Failure to adhere to this procedure In matters that proceed beyond the opportunity to reply. does not create a jurisdictional bar for stage in which the Commission has the Commission to pursue all remedies determined there is reason to believe II. Procedure Following the Submission to correct or prevent a violation of the that a violation has occurred or is about of Probable Cause Briefs by the Office Act. to occur, and after the completion of any of General Counsel This notice establishes agency investigation, both the FECA, 2 U.S.C. 1. The OGC Notice provided to the practices or procedures. This procedure 437g(a)(3), and the Commission’s Commission by OGC following the sets forth the Commission’s intentions regulations, 11 CFR 111.16(a), require Reply Brief (or if there was a Probable concerning the exercise of its discretion OGC to make a recommendation to the Cause Hearing, following the hearing), in its enforcement program. However, Commission on whether or not to find see 11 CFR 111.16(d), shall the Commission retains that sole probable cause to believe that a contemporaneously be provided to the discretion and may or may not exercise violation has occurred or is about to respondent. it as appropriate with respect to the occur. 2. The OGC Notice may include facts and circumstances of each When OGC makes its information that replies to, or argues enforcement matter it considers, with or recommendation on whether or not the facts or law in response to, the without notice. Consequently, this Commission should find probable respondent’s Reply Brief, or arising out procedure does not bind the cause, such recommendation is of the Probable Cause Hearing, if any. Commission or any member of the accompanied by a brief (Probable Cause 3. If the OGC Notice contains new general public, nor does it create any Brief) supporting the recommendation. facts or new legal arguments raised by rights for respondents or third parties. A copy of the Probable Cause Brief is OGC and not contained in the Probable As such, this notice does not constitute provided to each respondent. 11 CFR Cause Brief, or raised at the Probable an agency regulation requiring notice of 111.16(b). The Probable Cause Brief Cause Hearing, if any, the respondent proposed rulemaking, opportunities for must comport with the disclosure may submit a written request to address public participation, prior publication, procedures adopted by the Commission the new points raised by OGC. Any such and delay of effective date under 5 on June 2, 2011. See Agency Procedure written request must specify the new U.S.C. 553 of the Administrative for Disclosure of Documents and points that the respondent seeks to Procedure Act (APA). The provisions of Information in the Enforcement Process, address and must be submitted to the the Regulatory Flexibility Act, 5 U.S.C. 76 FR 34986 (June 15, 2011). Secretary of the Commission within five 605(b), which apply when notice and
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comment are required by the APA or Room W12–140, 1200 New Jersey Discussion another statute, are not applicable. Avenue, SE., Washington, DC 20590. On March 3, 2011, we issued AD Dated: October 6, 2011. • Hand Delivery: Deliver to Mail 2011–06–06, amendment 39–16631 (76 On behalf of the Commission. address above between 9 a.m. and FR 13078, March 10, 2011), for all Cynthia L. Bauerly, 5 p.m., Monday through Friday, except Eclipse Aerospace, Inc. Model EA500 Federal holidays. Chair, Federal Election Commission. airplanes equipped with Pratt & Whitney Canada, Corp. (P&WC) Model [FR Doc. 2011–26415 Filed 10–12–11; 8:45 am] For service information identified in PW610F–A engines. That AD BILLING CODE 6715–01–P this AD, contact Pratt & Whitney Canada, 1000 Marie-Victorin Blvd., superseded AD 2008–24–07, Longueuil, Quebec, J4G 1A1 Canada; amendment 39–15747 (73 FR 70866, November 24, 2008) and requires DEPARTMENT OF TRANSPORTATION telephone: (800) 268–8000; Internet: http://www.P&WC.ca. You may review incorporating an operating limitation of Federal Aviation Administration copies of the referenced service a maximum operating altitude of 30,000 information at the FAA, Small Airplane feet into Section 2, Limitations, of the 14 CFR Part 39 Directorate, 901 Locust, Kansas City, AFM. That AD resulted from several Missouri 64106. For information on the incidents of engine surge due to hard [Docket No. FAA–2011–0199; Directorate availability of this material at the FAA, carbon build up blocking the static Identifier 2011–CE–005–AD] call (816) 329–4148. vanes at maximum operating altitude of RIN 2120–AA64 37,000 feet. We issued that AD to Examining the AD Docket prevent hard carbon buildup on the Airworthiness Directives; Eclipse You may examine the AD docket on static vane, which could result in engine Aerospace, Inc. Airplanes Equipped the Internet at http:// surges. Engine surges may result in a With Pratt & Whitney Canada, Corp. www.regulations.gov; or in person at the necessary reduction in thrust and PW610F–A Engines Docket Management Facility between decreased power for the affected engine. In some cases, this could result in flight AGENCY: Federal Aviation 9 a.m. and 5 p.m., Monday through and landing under single-engine Administration (FAA), DOT. Friday, except Federal holidays. The AD docket contains this proposed AD, the conditions. ACTION: Notice of proposed rulemaking (NPRM). regulatory evaluation, any comments Actions Since Existing AD Was Issued received, and other information. The Since we issued AD 2011–06–06, SUMMARY: We propose to revise an street address for the Docket Office amendment 39–16631 (76 FR 13078, existing airworthiness directive (AD) (phone: 800–647–5527) is in the March 10, 2011), P&WC has issued a that applies to all Eclipse Aerospace, ADDRESSES section. Comments will be new service bulletin that incorporates a Inc. Model EA500 airplanes equipped available in the AD docket shortly after design change to the combustion with Pratt & Whitney Canada, Corp. receipt. chamber liner assembly. The current (P&WC) Model PW610F–A engines. The FOR FURTHER INFORMATION CONTACT: Eric design of the combustion chamber liner existing AD currently requires Kinney, Aerospace Engineer, FAA, Fort assembly is a one-piece configuration. incorporating an operating limitation of Worth Aircraft Certification Office, 2601 The new design change involves a maximum operating altitude of 30,000 Meacham Blvd., Fort Worth, Texas replacing the combustion chamber liner feet into Section 2, Limitations, of the 76137; telephone: (817) 222–5459; fax: assembly with one that has inner and airplane flight manual (AFM). Since we (817) 222–5960; e-mail: outer liner assemblies that are held by issued that AD, P&WC has developed a [email protected]. cast heat shields. design change for the combustion Upon replacing the combustion chamber liner assembly. This proposed SUPPLEMENTARY INFORMATION: chamber liner assembly on both engines AD would retain the requirements of the Comments Invited with the new design combustion current AD, clarify the engine chamber assemblies, the operating applicability, and allow the option of We invite you to send any written limits of the airplane can be restored to incorporating the design change to relevant data, views, or arguments about the original certificated maximum terminate the current operating this proposed AD. Send your comments operating altitude of 41,000 feet. limitation and restore the original to an address listed under the We have been informed that all new certificated maximum operating altitude ADDRESSES section. Include ‘‘Docket No. P&WC Model PW610F–A engines of 41,000 feet. We are proposing this AD FAA–2011–0199; Directorate Identifier manufactured for new production to correct the unsafe condition on these 2011–CE–005–AD’’ at the beginning of Eclipse Aerospace, Inc. Model EA500 products. your comments. We specifically invite airplanes will incorporate the new DATES: We must receive comments on comments on the overall regulatory, combustion chamber liner assembly. this proposed AD by November 28, economic, environmental, and energy The serial numbers for these new 2011. aspects of this proposed AD. We will engines will start after PCE–LA0583. ADDRESSES: You may send comments, consider all comments received by the Therefore, to make it clear that this using the procedures found in 14 CFR closing date and may amend this proposed AD will not be applicable to 11.43 and 11.45, by any of the following proposed AD because of those the new production airplanes, we need methods: comments. to clarify the engine applicability to • Federal eRulemaking Portal: Go to We will post all comments we include an end serial number. http://www.regulations.gov. Follow the receive, without change, to http:// Relevant Service Information instructions for submitting comments. www.regulations.gov, including any • Fax: 202–493–2251. personal information you provide. We We reviewed Pratt & Whitney Canada • Mail: U.S. Department of will also post a report summarizing each Service Bulletin P&WC S.B. No. 60077, Transportation, Docket Operations, substantive verbal contact we receive dated June 1, 2011. The service M–30, West Building Ground Floor, about this proposed AD. information describes procedures for
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replacing the turbofan engine develop in other products of the same Service Bulletin P&WC S.B. No. 60077, combustion chamber liner assembly type design. dated June 1, 2011, to terminate the operating limitations set in AD 2011– with one that has inner and outer liner Proposed AD Requirements assemblies that include heat shields. 06–06 and restore the original This proposed AD would retain all certificated altitude of 41,000 feet. FAA’s Determination requirements of AD 2011–06–06, amendment 39–16631 (76 FR 13078, Costs of Compliance We are proposing this AD because we March 10, 2011). This proposed AD We estimate that this proposed AD evaluated all the relevant information would also clarify the engine affects 259 airplanes of U.S. registry. and determined the unsafe condition applicability and allow the option of We estimate the following costs to described previously is likely to exist or incorporating Pratt & Whitney Canada comply with this proposed AD:
ESTIMATED COSTS (RETAINED FROM AD 2011–06–06, AMENDMENT 39–16631 (76 FR 13078, MARCH 10, 2011)
Cost per Cost on U.S. Action Labor cost Parts cost product operators
Incorporate operating limitations of max- 1 work-hour × $85 per hour = $85 ...... Not Applicable ...... $85 $22,015 imum operating altitude of 30,000 feet into Section 2, Limitations, of the AFM.
The cost presented above is a cost a private pilot certificate as authorized Regulations (14 CFR 43.7) may insert estimate only. A person holding at least by section 43.7 of the Federal Aviation the AFM change.
ESTIMATED COSTS [Optional action]
Cost on U.S. Action Labor cost Parts cost Cost per product operators
Incorporation of Pratt & Whitney Can- 20 work-hours × $85 per hour = $236,610 for both $238,310 for both $61,722,290 for ada Service Bulletin P&WC S.B. No. $1,700 for both engines. engines. engines. both engines. 60077, dated June 1, 2011, on both engines.
Authority for This Rulemaking national Government and the States, or PART 39—AIRWORTHINESS on the distribution of power and Title 49 of the United States Code DIRECTIVES responsibilities among the various specifies the FAA’s authority to issue levels of government. 1. The authority citation for part 39 rules on aviation safety. Subtitle I, continues to read as follows: Section 106, describes the authority of For the reasons discussed above, I Authority: 49 U.S.C. 106(g), 40113, 44701. the FAA Administrator. Subtitle VII, certify that the proposed regulation: Aviation Programs, describes in more (1) Is not a ‘‘significant regulatory § 39.13 [Amended] detail the scope of the Agency’s action’’ under Executive Order 12866, 2. The FAA amends § 39.13 by authority. (2) Is not a ‘‘significant rule’’ under removing airworthiness directive (AD) We are issuing this rulemaking under the DOT Regulatory Policies and 2011–06–06, amendment 39–16631 (76 the authority described in Subtitle VII, Procedures (44 FR 11034, February 26, FR 13078, March 10, 2011), and adding Part A, Subpart III, Section 44701, the following new AD: 1979), ‘‘General requirements.’’ Under that Eclipse Aerospace, Inc. Model EA500 section, Congress charges the FAA with (3) Will not affect intrastate aviation Airplanes Equipped With Pratt & promoting safe flight of civil aircraft in in Alaska, and Whitney Canada, Corp. Model PW610F– air commerce by prescribing regulations (4) Will not have a significant A Engines: Docket No. FAA–2011–0199; for practices, methods, and procedures economic impact, positive or negative, Directorate Identifier 2011–CE–006–AD. the Administrator finds necessary for on a substantial number of small entities (a) Comments Due Date safety in air commerce. This regulation under the criteria of the Regulatory is within the scope of that authority The FAA must receive comments on this Flexibility Act. AD action by November 28, 2011. because it addresses an unsafe condition that is likely to exist or develop on List of Subjects in 14 CFR Part 39 (b) Affected ADs products identified in this rulemaking This AD revises AD 2011–06–06, Air transportation, Aircraft, Aviation action. amendment 39–16631 (76 FR 13078, March safety, Incorporation by reference, 10, 2011). Regulatory Findings Safety. (c) Applicability We have determined that this The Proposed Amendment This AD applies to Model EA500 airplanes, proposed AD would not have federalism all serial numbers, that are: implications under Executive Order Accordingly, under the authority (1) equipped with Pratt & Whitney Canada, 13132. This proposed AD would not delegated to me by the Administrator, Corp. Model PW610F–A engines, all serial have a substantial direct effect on the the FAA proposes to amend 14 CFR part numbers up to and including serial number States, on the relationship between the 39 as follows: PCE–LA0583; and
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(2) certificated in any category. (i) Paperwork Reduction Act Burden SECURITIES AND EXCHANGE Statement (d) Subject COMMISSION A federal agency may not conduct or Joint Aircraft System Component (JASC)/ sponsor, and a person is not required to 17 CFR Parts 229 and 249 Air Transport Association (ATA) of America respond to, nor shall a person be subject to Code 72, Engine. [Release No. 34–65508; File No. S7–40–10] a penalty for failure to comply with a (e) Unsafe Condition collection of information subject to the Roundtable on Issues Relating to This AD was prompted by several requirements of the Paperwork Reduction Conflict Minerals incidents of engine surge. We are issuing this Act unless that collection of information AD to prevent hard carbon buildup on the displays a current valid OMB Control AGENCY: Securities and Exchange static vane, which could result in engine Number. The OMB Control Number for this Commission. surges. Engine surges may result in a information collection is 2120–0056. Public ACTION: Notice of roundtable discussion; necessary reduction in thrust and decreased reporting for this collection of information is request for comment. power for the affected engine. In some cases, estimated to be approximately 5 minutes per this could result in flight and landing under response, including the time for reviewing SUMMARY: On October 18, 2011, the single-engine conditions. It is also possible instructions, completing and reviewing the Commission will hold a public this could affect both engines at the same collection of information. All responses to time, requiring dual-engine shutdown. roundtable at which invited participants this collection of information are mandatory. will discuss various issues related to the (f) Compliance Comments concerning the accuracy of this Commission’s required rulemaking Comply with this AD within the burden and suggestions for reducing the under Section 1502 of the Dodd-Frank burden should be directed to the FAA at: 800 compliance times specified, unless already Wall Street Reform and Consumer done. Independence Ave., SW., Washington, DC 20591, Attn: Information Collection Protection Act (the ‘‘Act’’), which (g) Action Retained From AD 2011–06–06, Clearance Officer, AES–200. relates to reporting requirements Amendment 39–16631 (76 FR 13078, March regarding conflict minerals originating 10, 2011) (j) Alternative Methods of Compliance in the Democratic Republic of the Congo (AMOCs) (1) Before further flight after March 21, and adjoining countries. Roundtable 2011 (the effective date retained from AD (1) The Manager, Fort Worth ACO, FAA, panelists are expected to reflect the 2011–06–06), incorporate the following has the authority to approve AMOCs for this views of different constituencies, language into Section 2, Limitations, of your AD, if requested using the procedures found including investors, affected issuers, airplane flight manual (AFM): ‘‘Per AD 2011– in 14 CFR 39.19. In accordance with 14 CFR human rights organizations, and other 06–06, LIMIT THE MAXIMUM OPERATING 39.19, send your request to your principal ALTITUDE TO 30,000 FEET (9144M) stakeholders. inspector or local Flight Standards District The roundtable will consist of a series PRESSURE ALTITUDE.’’ Office, as appropriate. If sending information (2) A person holding at least a private pilot directly to the manager of the ACO, send it of panels that are designed to provide a certificate as authorized by section 43.7 of to the attention of the person identified in the forum for various stakeholders to the Federal Aviation Regulations (14 CFR Related Information section of this AD. exchange views and provide input on 43.7) may insert the operating limitations (2) Before using any approved AMOC, issues related to the Commission’s into Section 2, Limitations, of the AFM. notify your appropriate principal inspector, required rulemaking. Make an entry into the aircraft logbook or lacking a principal inspector, the manager DATES: The roundtable discussion will showing compliance with this portion of the of the local flight standards district office/ AD in accordance with section 43.9 of the take place on October 18, 2011. The certificate holding district office. Federal Aviation Regulations (14 CFR 43.9). Commission will accept comments (3) You may incorporate paragraph (g) of (3) AMOCs approved for AD 2011–06–06, regarding the issues to be addressed in this AD into Section 2, Limitations, of your amendment 39–16631 (76 FR 13078, March the roundtable and otherwise regarding AFM to comply with this AD. 10, 2011) are approved as AMOCs for this the proposed rule amendments until AD. (h) Optional Action To Restore Original November 1, 2011. Certificated Maximum Operating Altitude (k) Related Information ADDRESSES: The roundtable discussion (1) You may, at any time after compliance (1) For more information about this AD, will be held in the auditorium of the with paragraph (g) of this AD, on both contact Eric Kinney, Aerospace Engineer, SEC’s headquarters at 100 F Street, NE., engines replace the turbofan engine Fort Worth ACO, FAA, 2601 Meacham Blvd., Washington, DC on October 18, 2011 combustion chamber liner assembly with one Fort Worth, Texas 76137; telephone: (817) from 12:30 p.m. to approximately 5:15 that has inner and outer liner assemblies that 222–5459; fax: (817) 222–5960; e-mail: p.m. The roundtable will be open to the include heat shields. Do the replacements in [email protected]. public with seating on a first-come, first- accordance with Pratt & Whitney Canada (2) For service information identified in served basis, and the discussion will Service Bulletin P&WC S.B. No. 60077, dated this AD, contact Pratt & Whitney Canada, also be available via webcast on the June 1, 2011. This includes the change to the 1000 Marie-Victorin Blvd., Longueuil, weight and balance in paragraph 1.H. in the Quebec, J4G 1A1 Canada; telephone: (800) Commission’s Web site at http:// service bulletin. 268–8000; Internet: http://www.P&WC.ca. www.sec.gov. Comments may be (2) Before further flight after doing the You may review copies of the referenced submitted by any of the following replacement specified in paragraph (h)(1) of service information at the FAA, Small methods: this AD, remove the limitation required in Airplane Directorate, 901 Locust, Kansas Electronic Comments paragraph (g)(1) of this AD. City, Missouri 64106. For information on the (3) Within 30 days after doing the availability of this material at the FAA, call • Use the Commission’s Internet replacement specified in paragraph (h)(1) of (816) 329–4148. comment form at http://www.sec.gov/ this AD or within 30 days after the effective rules/other.shtml; or date of this AD, whichever occurs later, send Issued in Kansas City, Missouri, on • Send an e-mail to rule- a memo or email to Eric Kinney at the October 6, 2011. [email protected]. address specified in paragraph (k)(1) of this Earl Lawrence, AD notifying him of the completion of the Manager, Small Airplane Directorate, Aircraft Paper Comments replacement. In this notification, include the Certification Service. airplane serial number, engine serial • Send paper comments in triplicate numbers, and time-in-service (TIS) hours at [FR Doc. 2011–26478 Filed 10–12–11; 8:45 am] to Elizabeth M. Murphy, Secretary, the time of replacement. BILLING CODE 4910–13–P Securities and Exchange Commission,
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100 F Street, NE., Washington, DC DEPARTMENT OF THE TREASURY ENVIRONMENTAL PROTECTION 20549–1090. AGENCY Internal Revenue Service All submissions should refer to File 40 CFR Part 52 Number S7–40–10. This file number 26 CFR Part 1 should be included on the subject line [EPA–R05–OAR–2010–1001; FRL–9478–5] if e-mail is used. To help process and [REG–140280–09] Approval and Promulgation of Air review your submissions more Quality Implementation Plans; Indiana; efficiently, please use only one method. RIN 1545–BK16 Miscellaneous Metal and Plastic Parts The Commission will post all comments Surface Coating Rules on the Commission’s Web site at Tax Return Preparer Penalties Under http://www.sec.gov. Comments will also Section 6695; Correction AGENCY: Environmental Protection be available for website viewing and Agency (EPA). copying in the Commission’s Public AGENCY: Internal Revenue Service (IRS), ACTION: Proposed rule. Reference Room, 100 F Street, NE., Treasury. SUMMARY: EPA is proposing to approve Washington, DC 20549, on official ACTION: Correction to notice of proposed a revision to the Indiana State business days between the hours of 10 rulemaking and notice of public hearing. Implementation plan (SIP) submitted by a.m. and 3 p.m. All comments received the Indiana Department of will be posted without change; we do SUMMARY: This document contains a Environmental Management (IDEM) on not edit personal identifying correction to a notice of proposed November 24, 2010. The SIP revision information from submissions. You rulemaking that were published in the consists of amendments to 326 Indiana should submit only information that Federal Register on Tuesday, October Administrative Code (IAC) 8–2–1 and you wish to make available publicly. 11, 2011. These proposed regulations 326 IAC 8–2–9, the applicability FOR FURTHER INFORMATION CONTACT: John would modify existing regulations sections for Indiana’s miscellaneous Fieldsend, Special Counsel in the Office related to the tax return preparer metal and plastic parts surface coating of Rulemaking, Division of Corporation penalties under section 6695 of the rules. These rules are approvable Finance, at (202) 551–3430, 100 F Internal Revenue Code. The proposed because they satisfy the requirements of the Clean Air Act (CAA) for volatile Street, NE., Washington, DC 20549– regulations are necessary to monitor and organic compound (VOC) reasonably 3628. to improve compliance with the tax return preparer due to diligence available control technology (RACT) SUPPLEMENTARY INFORMATION: Section requirements of this section. rules. 1502 of the Act amends the Securities FOR FURTHER INFORMATION CONTACT: DATES: Comments must be received on Exchange Act by adding new Section Spence Hanemann, (202) 622–4940 (not or before November 14, 2011. 13(p). Section 13(p) requires the a toll-free number). ADDRESSES: Submit your comments, Commission to promulgate disclosure SUPPLEMENTARY INFORMATION: identified by Docket ID No. EPA–R05– and reporting regulations regarding the Background OAR–2010–1001 by one of the following use of conflict minerals from the methods: Democratic Republic of the Congo and The notice of proposed rulemaking 1. http://www.regulations.gov: Follow adjoining countries. On December 15, (REG–140280–09) that is the subject of the on-line instructions for submitting 2010, the Commission proposed rule this correction is under section 6695 of comments. amendments to implement Exchange the Internal Revenue Code. 2. E-mail: [email protected]. 1 3. Fax: (312) 408–2279. Act Section 13(p). Need for Correction 4. Mail: Douglas Aburano, Chief, The Commission has been asked to As published October 11, 2011 (76 FR Control Strategies Section (AR–18J), hold a roundtable discussion to 62689), the notice of proposed U.S. Environmental Protection Agency, facilitate its understanding of the issues regulations (REG–140280–09) contains 77 West Jackson Boulevard, Chicago, surrounding conflict minerals. The an error that may prove to be misleading Illinois 60604. Commission believes that additional and is in need of clarification. 5. Hand Delivery: Douglas Aburano, public input on the proposed Correction of Publication Chief, Control Strategies Section (AR– rulemaking would be beneficial in light 18J), U.S. Environmental Protection of the particular subject matter. Accordingly, the notice of proposed Agency, 77 West Jackson Boulevard, rulemaking (REG–140280–09), that was Dated: October 6, 2011. Chicago, Illinois 60604. Such deliveries the subject of FR Doc. 2011–26247, is are only accepted during the Regional By the Commission. corrected as follows: Office normal hours of operation, and Elizabeth M. Murphy, 1. On page 62689, column 2, in the special arrangements should be made Secretary. preamble under the caption ADDRESSES, for deliveries of boxed information. The [FR Doc. 2011–26431 Filed 10–12–11; 8:45 am] line 14, the language Regional Office official hours of BILLING CODE 8011–01–P ‘‘www.regulations.gov/Regs’’ is business are Monday through Friday, corrected to read 8:30 a.m. to 4:30 p.m., excluding ‘‘www.regulations.gov/’’. Federal holidays. Diane O. Williams, Please see the direct final rule which is located in the Rules section of this Federal Register Liaison, Publications and Regulations Branch, Legal Processing Federal Register for detailed Division, Associate Chief Counsel (Procedure instructions on how to submit and Administration). comments. 1 Conflict Minerals, Release No. 34–63547; File [FR Doc. 2011–26652 Filed 10–11–11; 4:15 pm] FOR FURTHER INFORMATION CONTACT: No. S7–40–10 (Dec. 23, 2010) [75 FR 80948]. BILLING CODE 4830–01–P Steven Rosenthal, Environmental
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Engineer, Attainment Planning and analyses’’). This proposal would www.regulations.gov your e-mail Maintenance Section, Air Programs provide an additional year to the address will be automatically captured Branch (AR–18J), Environmental previously established two-year and included as part of the comment Protection Agency, Region 5, 77 West conformity grace period, so that that is placed in the public docket and Jackson Boulevard, Chicago, Illinois MOVES2010a would not be required for made available on the Internet. If you 60604, (312) 886–6052, regional conformity analyses until submit an electronic comment, EPA [email protected]. March 2, 2013. This proposal would not recommends that you include your name and other contact information in SUPPLEMENTARY INFORMATION: In the affect EPA’s previous approval of the the body of your comment and with any Final Rules section of this Federal use of MOVES in official state air disk or CD–ROM you submit. If EPA Register, EPA is approving the State’s quality implementation plan (SIP) cannot read your comment due to SIP submittal as a direct final rule submissions or the existing grace period technical difficulties and cannot contact without prior proposal because the before MOVES2010a is required for you for clarification, EPA may not be Agency views this as a noncontroversial carbon monoxide and particulate matter able to consider your comment. submittal and anticipates no adverse hot-spot analyses for project-level Electronic files should avoid the use of comments. A detailed rationale for the conformity determinations. DATES: Written comments on this special characters, any form of approval is set forth in the direct final encryption, and be free of any defects or rule. If no adverse comments are proposal must be received on or before November 14, 2011. viruses. For additional information received in response to this rule, no about EPA’s public docket visit the EPA ADDRESSES: Submit your comments, further activity is contemplated. If EPA Docket Center homepage at http:// identified by Docket ID No. EPA–OAR– receives adverse comments, the direct www.epa.gov/epahome/dockets.htm. final rule will be withdrawn and all 2011–0393, by one of the following For additional instructions on public comments received will be methods: submitting comments, go to Section I. of • http://www.regulations.gov: Follow addressed in a subsequent final rule the SUPPLEMENTARY INFORMATION section the online instructions for submitting based on this proposed rule. EPA will of this document. not institute a second comment period. comments. • Docket: All documents in the docket Any parties interested in commenting E-mail: [email protected] are listed in the www.regulations.gov on this action should do so at this time. • Fax: (202) 566–9744 • index. Although listed in the index, Please note that if EPA receives adverse Mail: Air Docket, Environmental some information is not publicly comment on an amendment, paragraph, Protection Agency, Mailcode: 2822T, available, e.g., CBI or other information or section of this rule, and if that 1200 Pennsylvania Ave., NW., whose disclosure is restricted by statute. provision may be severed from the Washington, DC 20460, Attention Certain other material, such as remainder of the rule, EPA may adopt Docket ID No. EPA–HQ–OAR–2011– copyrighted material, will be publicly as final those provisions of the rule that 0393. Please include a total of two available only in hard copy. Publicly are not the subject of an adverse copies. • available docket materials are available comment. For additional information, Hand Delivery: Air Docket, either electronically in http:// see the direct final rule which is located Environmental Protection Agency: EPA www.regulations.gov or in hard copy at in the Rules section of this Federal West Building, EPA Docket Center the Air and Radiation Docket, EPA/DC, Register. (Room 3334), 1301 Constitution Ave., EPA West, Room 3334, 1301 NW., Washington, DC, Attention Docket Dated: September 30, 2011. Constitution Ave., NW., Washington, ID No. EPA–HQ–OAR–2011–0393. DC. The Public Reading Room is open Susan Hedman, Please include two copies. Such Regional Administrator, Region 5. from 8:30 a.m. to 4:30 p.m., Monday deliveries are only accepted during the through Friday, excluding legal [FR Doc. 2011–26340 Filed 10–12–11; 8:45 am] Docket’s normal hours of operation, and holidays. The telephone number for the BILLING CODE 6560–50–P special arrangements should be made Public Reading Room is (202) 566–1744 for deliveries of boxed information. and the telephone number for the Air Instructions: Direct your comments to and Radiation Docket is (202) 566–1742. ENVIRONMENTAL PROTECTION Docket ID No. EPA–HQ–OAR–2011– AGENCY FOR FURTHER INFORMATION CONTACT: Meg 0393. EPA’s policy is that all comments Patulski, State Measures and Conformity received will be included in the public 40 CFR Part 93 Group, Transportation and Regional docket without change and may be Programs Division, Environmental [EPA–HQ–OAR–2011–0393; FRL–9477–9] made available online at http:// Protection Agency, 2000 Traverwood www.regulations.gov, including any RIN 2060–AR03 Drive, Ann Arbor, MI 48105; telephone personal information provided, unless number: (734) 214–4842; fax number: Transportation Conformity Rule: the comment includes information (734) 214–4052; e-mail address: MOVES Regional Grace Period claimed to be Confidential Business [email protected]; or Astrid Larsen, Extension Information (CBI) or other information State Measures and Conformity Group, whose disclosure is restricted by statute. Transportation and Regional Programs AGENCY: Environmental Protection Do not submit information that you Division, Environmental Protection Agency (EPA). consider to be CBI or otherwise Agency, 2000 Traverwood Drive, Ann ACTION: Proposed rule. protected through www.regulations.gov Arbor, MI 48105; telephone number: or e-mail. The http:// (734) 214–4812; fax number: (734) 214– SUMMARY: EPA is proposing to extend www.regulations.gov Web site is an 4052; e-mail address: the grace period before the MOtor ‘‘anonymous access’’ system, which [email protected]. Vehicle Emission Simulator model means EPA will not know your identity (currently MOVES2010a) is required for or contact information unless you SUPPLEMENTARY INFORMATION: The regional emissions analyses for provide it in the body of your comment. content of this preamble are listed in the transportation conformity If you send an e-mail comment directly following outline: determinations (‘‘regional conformity to EPA without going through http:// I. General Information
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II. Background index.htm. Guidance on how to apply the EPA’s transportation conformity III. Extension of MOVES2010a Regional MOVES2010a for SIPs and Web site at: http://www.epa.gov/otaq/ Conformity Grace Period transportation conformity purposes, stateresources/transconf/policy.htm. IV. Conformity SIPs including ‘‘Policy Guidance on the Use I. General Information V. Statutory and Executive Order Reviews of MOVES2010 for State Implementation Plan Development, A. Does this action apply to me? Availability of MOVES2010a and Transportation Conformity, and Other Support Materials Entities potentially regulated by the Purposes’’ (EPA–420–B–09–046, transportation conformity rule are those Copies of the official version of the December 2009) and ‘‘Technical that adopt, approve, or fund MOVES2010a motor vehicle emissions Guidance on the Use of MOVES2010 for transportation plans, programs, or model, along with user guides and Emission Inventory Preparation in State projects under title 23 U.S.C. or title 49 supporting documentation, are available Implementation Plans and U.S.C. Chapter 53. Regulated categories on EPA’s MOVES Web site: http:// Transportation Conformity’’ (EPA–420– and entities affected by today’s action www.epa.gov/otaq/models/moves/ B–10–023, April 2010) can be found on include:
Category Examples of regulated entities
Local government ...... Local transportation and air quality agencies, including metropolitan planning organizations (MPOs). State government ...... State transportation and air quality agencies. Federal government ...... Department of Transportation (Federal Highway Administration (FHWA) and Federal Transit Administration (FTA)).
This table is not intended to be • Identify the rulemaking by docket other information related to this action exhaustive, but rather provides a guide number and other identifying at the official public docket. See the for readers regarding entities likely to be information (subject heading, Federal ADDRESSES section for its location. affected by this proposal. This table lists Register date and page number). 2. Electronic Access the types of entities of which EPA is • Follow directions—The Agency aware that potentially could be may ask you to respond to specific You may access this Federal Register regulated by the transportation questions or organize comments by document electronically through EPA’s conformity rule. Other types of entities referencing a Code of Federal Transportation Conformity Web site at not listed in the table could also be Regulations (CFR) part or section http://www.epa.gov/otaq/ regulated. To determine whether your number. stateresources/transconf/index.htm. organization is regulated by this action, • Explain why you agree or disagree, You may also access this document you should carefully examine the suggest alternatives and substitute electronically under the Federal applicability requirements in 40 CFR language for your requested changes. Register listings at http://www.epa.gov/ 93.102. If you have questions regarding • Describe any assumptions and fedrgstr/. the applicability of this action to a provide any technical information and/ An electronic version of the official particular entity, consult the persons or data that you used. public docket is available through listed in the preceding FOR FURTHER • If you estimate potential costs or http://www.regulations.gov. You may use http://www.regulations.gov to INFORMATION CONTACT section. burdens, explain how you arrived at your estimate in sufficient detail to submit or view public comments, access B. What should I consider as I prepare allow for it to be reproduced. the index listing of the contents of the my comments for EPA? • Provide specific examples to official public docket, and to access those documents in the public docket 1. Submitting CBI illustrate your concerns, and suggest that are available electronically. Once in Do not submit this information to EPA alternatives. • Explain your views as clearly as the system, select ‘‘search,’’ then key in through http://www.regulations.gov or the appropriate docket identification e-mail. Clearly mark the part or all of possible, avoiding the use of profanity or personal threats. number. the information that you claim to be Certain types of information will not • Make sure to submit your CBI. For CBI information in a disk or be placed in the electronic public comments by the comment period CD–ROM that you mail to EPA, mark docket. Information claimed as CBI and deadline identified. the outside of the disk or CD–ROM as other information for which disclosure CBI and then identify electronically 3. Docket Copying Costs is restricted by statute is not available within the disk or CD–ROM the specific You may be required to pay a for public viewing in the electronic information that is claimed as CBI. In reasonable fee for copying docket public docket. EPA’s policy is that addition to one complete version of the materials. copyrighted material will not be placed comment that includes information in the electronic public docket but will claimed as CBI, a copy of the comment C. How do I get copies of this proposed be available only in printed, paper form that does not contain the information rule and other documents? in the official public docket. To the extent feasible, publicly claimed as CBI must be submitted for 1. Docket inclusion in the public docket. available docket materials will be made Information so marked will not be EPA has established an official public available in the electronic public disclosed except in accordance with docket for this action under Docket ID docket. When a document is selected procedures set forth in 40 CFR Part 2. No. EPA–HQ–OAR–2011–0393. You can from the index list in EPA Dockets, the get a paper copy of this Federal Register system will identify whether the 2. Tips for Preparing Your Comments document, as well as the documents document is available for viewing in the When submitting comments, specifically referenced in this action, electronic public docket. Although not remember to: any public comments received, and all docket materials may be available
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electronically, you may still access any DOT, and they concur with this analysis of new data incorporated of the publicly available docket proposal. within MOVES will enhance state and materials through the docket facility B. What is MOVES2010a, and how has local agency understanding of how on- identified in the ADDRESSES section. it been implemented to date? road mobile sources contribute to EPA intends to provide electronic emissions inventories and the relative access in the future to all of the publicly The MOtor Vehicle Emission effectiveness of various control available docket materials through the Simulator model (MOVES) is EPA’s strategies. However, this new model electronic public docket. state-of-the-art model for estimating framework has created a significant Public comments submitted on emissions from highway vehicles, based learning curve for state and local agency computer disks that are mailed or on analyses of millions of emission test staff that are required to use MOVES.3 delivered to the docket will be results and considerable advances in the transferred to the electronic public Agency’s understanding of vehicle In addition to the challenges of docket. Public comments that are emissions. MOVES is currently EPA’s learning new software, state and local mailed or delivered to the docket will be official emissions model for state and agencies also have to make substantial scanned and placed in the electronic local agencies to estimate volatile changes in the processes they have public docket. Where practical, physical organic compounds (VOCs), nitrogen developed to create model input and objects will be photographed, and the oxides (NOX), PM, CO, and other apply model output. While there were photograph will be placed in the precursors from cars, trucks, buses, and incremental changes between each electronic public docket along with a motorcycles for SIP purposes and previous version of the MOBILE model, brief description written by the docket conformity determinations outside of the basic input and output structure of staff. California. MOVES’ database-centered that model was essentially unchanged For additional information about the design allows EPA to update emissions since the early 1980s. Over time, state electronic public docket, visit the EPA data more frequently and allows users and local agencies developed their own Docket Center homepage at http:// much greater flexibility in organizing methods for incorporating local inputs www.epa.gov/epahome/dockets.htm. input and output data. in MOBILE format and for post- MOVES2010a is the latest official II. Background processing MOBILE results for version of MOVES that EPA has inventory development and air quality A. What is transportation conformity? approved for SIP and conformity modeling. To help state and local Transportation conformity is required purposes. EPA originally announced the agencies with this part of the current under Clean Air Act (CAA) section release of MOVES2010 in the Federal transition, EPA created a number of 176(c) (42 U.S.C. 7506(c)) to ensure that Register on March 2, 2010 (75 FR 9411) tools that take input data formatted for transportation plans, transportation and subsequently released MOBILE6.2 and convert that data for improvement programs (TIPs), and MOVES2010a on September 8, 2010. use in MOVES2010a. MOVES2010a includes minor revisions federally supported highway and transit EPA anticipated many of these that enhance model performance and projects are consistent with the purpose challenges when it released MOVES. In did not significantly affect criteria of the SIP. Conformity to the purpose of order to assist in this model transition, pollutant emissions results. Since these the SIP means that transportation EPA and DOT have already provided activities will not cause or contribute to are minor revisions to MOVES2010, MOVES2010a is not considered a ‘‘new hands-on MOVES training in many new air quality violations, worsen states.4 Additional MOVES training for existing violations, or delay timely model’’ under section 93.111 of the conformity rule, as described further regional inventories has been requested, attainment of the relevant national and will continue to be offered for the ambient air quality standard (NAAQS) below. MOVES2010a is a significant foreseeable future. EPA continues to or required interim milestones. provide other technical assistance to Transportation conformity (hereafter, improvement over the previous emissions model, MOBILE6.2,2 in terms state and local agencies via on-going ‘‘conformity’’) applies to areas that are conference calls with user groups, designated nonattainment, and those of quality of results and overall functionality. It incorporates the latest e-mail and phone support, a frequently areas redesignated to attainment after asked questions web page, and web- 1990 (‘‘maintenance areas’’) for emissions data, more sophisticated calculation algorithms, increased user based presentations. All of these efforts transportation-related criteria are helping state and local agencies pollutants: Ozone, particulate matter flexibility, new software design, and make the transition to MOVES2010a, (PM and PM ) 1, carbon monoxide significant new capabilities. While these 2.5 10 and many agencies are making (CO), and nitrogen dioxide (NO ). EPA’s changes improve the quality of on-road 2 significant progress in applying the conformity rule (40 CFR Parts 51 and mobile source inventories, the overall model for official purposes. However, 93) establishes the criteria and degree of change in the model’s function other state and local agencies are still procedures for determining whether also adds to the start-up time required developing the technical capacity to use transportation activities conform to the for the transition from MOBILE6.2 to MOVES2010a, and need more time to SIP. EPA first promulgated the MOVES2010a. transition to the model and then conformity rule on November 24, 1993 EPA developed MOVES as a evaluate whether SIPs and their motor (58 FR 62188) and subsequently completely new model. Whereas vehicle emissions budgets, or published several other amendments. MOBILE6.2 was written in FORTRAN transportation plans and TIPs, should be The Department of Transportation and used simple text files for data input (DOT) is EPA’s federal partner in and output, MOVES2010a is written in implementing the conformity JAVA and uses a relational database 3 Some states also purchased computers with additional capacity and features for running regulation. EPA has coordinated with structure in MYSQL to handle input and output as data tables. These changes MOVES. 4 To date, EPA and DOT staff have provided a 1 make MOVES more flexible, and the 40 CFR 93.102(b)(1) defines PM2.5 and PM10 as 2-day hands-on MOVES course for regional particles with an aerodynamic diameter less than or emissions inventories (including regional equal to a nominal 2.5 and 10 micrometers, 2 EPA announced the release of MOBILE6.2 in conformity analyses) at over 30 locations around respectively. 2004 (69 FR 28830). the country.
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revised for future conformity establishing a grace period for MOVES2010a is required for regional determinations. conformity determinations (40 CFR conformity analyses. If finalized, 93.111(b)(2)). The length of the grace MOVES2010a would be required for C. Why is EPA conducting this period will depend on the degree of new regional conformity analyses that rulemaking? change in the model and the scope of re- begin after March 2, 2013. State and If finalized, today’s action would planning likely to be necessary for local agencies outside California would provide additional time that may be MPOs in order to assure conformity. use MOVES2010a for regional critical for nonattainment and The conformity rule provides for a grace conformity analyses earlier than March maintenance areas to learn and apply period for new emissions models of 2, 2013, if desired, and would be MOVES2010a for regional conformity between three and 24 months (40 CFR required to do so under limited analyses.5 EPA has been contacted by 93.111(b)(1)). circumstances such as after several state and local transportation In the preamble to the original 1993 MOVES2010a SIP motor vehicle and air quality agencies and conformity rule, EPA articulated its emissions budgets have been found associations that are concerned that intentions for establishing the length of adequate or approved for conformity there has not been sufficient transition conformity grace period for a new purposes. time for using MOVES2010a in regional emissions model (58 FR 62211): Due to the unique circumstances conformity analyses. These concerns ‘‘EPA and DOT will consider extending the presented by the transition from revolve around the time needed to build grace period if the effects of the new MOBILE6.2 to MOVES2010a, EPA is technical capacity for using emissions model are so significant that proposing to add a new paragraph (b)(3) MOVES2010a as well as completing previous SIP demonstrations of what to section 93.111 of the conformity rule. necessary SIP and/or transportation emission levels are consistent with This provision would only apply to plan/TIP changes to assure conformity attainment would be substantially affected. MOVES2010a and any future minor In such cases, states should have an revisions to this model that EPA in the future. Further details on today’s opportunity to revise their SIPs before MPOs action are provided below. must use the model’s new emissions factors. releases before March 2, 2013. Such Today’s proposal would not affect EPA encourages all agencies to inform EPA minor revisions would not start a new EPA’s previous approval of of the impacts of new emissions models in grace period for regional conformity MOVES2010a for official SIP their area, and EPA may pause to seek such analyses and could include performance submissions developed outside of input before determining the length of the enhancements that reduce MOVES run California.6 Today’s rulemaking would grace period.’’ time or model improvements to reduce also not affect the existing grace period Section 93.111 conformity requirements errors in operating the model. Any before MOVES2010a is required for have not changed since 1993, and have major model updates, such as an update PM2.5, PM10, and CO hot-spot analyses been implemented successfully for that significantly changes MOVES for project-level conformity many previous model transitions. results for criteria pollutant emissions, determinations (75 FR 79370). EPA On March 2, 2010, EPA announced would be evaluated separately as a coordinated closely with DOT in the official release of MOVES2010 and ‘‘new model’’ under conformity rule developing today’s action, and DOT established a two-year grace period section 93.111, pursuant to previously concurs on this proposed rule. before this model was required for new established requirements. regional conformity analyses (75 FR Before the end of the extended III. Extension of MOVES2010a Regional 9411). Although the original grace conformity grace period (March 2, Conformity Grace Period period was established for MOVES2010, 2013), areas would use the interagency A. Background EPA clarified in September 2010 that consultation process to examine how the same grace period for regional MOVES2010a would impact their future CAA section 176(c)(1) states that conformity analyses also applies to MPO transportation plan/TIP ‘‘* * * [t]he determination of MOVES2010a.7 EPA based its decision conformity determinations. Isolated conformity shall be based on the most to establish a two-year conformity grace rural areas would also consider the recent estimates of emissions, and such period on the factors under section impact of using MOVES2010a on future estimates shall be determined from the 93.111(b)(2), and advised areas to use regional conformity analyses. If most recent population, employment, the interagency consultation process to finalized, agencies should carefully travel, and congestion estimates * * *.’’ examine the impact of using MOVES in consider whether the SIP and its motor To meet this requirement, section their future regional conformity vehicle emissions budgets should be 93.111 of the conformity rule requires analyses. revised with MOVES2010a or if that conformity determinations be based Without further EPA action, transportation plans and TIPs should be on the latest motor vehicle emissions MOVES2010a would be required for revised before the end of the conformity model approved by EPA. When EPA regional conformity analyses that begin grace period, since doing so may be approves a new emissions model, EPA after March 2, 2012. As discussed necessary to ensure conformity in the consults with DOT to establish a grace further in today’s action, the special future. period before the model is required for circumstances of the transition from The proposal would allow regional conformity analyses (40 CFR 93.111(b)). MOBILE to MOVES2010a require a conformity analyses that are started EPA must consider many factors when reevaluation of the length of this during the grace period to be based on conformity grace period. either MOBILE6.2 or MOVES2010a. If 5 MPOs conduct regional conformity analyses to the grace period ended on March 2, demonstrate that transportation plans and TIPs are B. Description of Proposed Rule 2013, MOVES2010a would become the consistent with the air quality purposes of the SIP. Regional conformity analyses are also conducted in In today’s action, EPA is proposing to only approved motor vehicle emissions ‘‘isolated rural nonattainment and maintenance provide an additional year before model for regional conformity analyses areas’’ (defined by 40 CFR 93.101). outside California at that time. This 6 MOVES is not approved for use in California. 7 See ‘‘EPA Releases MOVES2010a Mobile Source would mean that all new regional EPA approved and announced the latest version of Emissions Model Update: Questions and Answers’’ conformity analyses started after the end California’s EMFAC model (EMFAC2007) for SIP (EPA–420–F–10–050, August 2010) at: http:// development and regional conformity analyses in www.epa.gov/otaq/models/moves/MOVES2010a/ of the grace period must be based on that state on January 18, 2008 (73 FR 3464). 420f10050.pdf. MOVES2010a, even if the SIP is based
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on MOBILE6.2 or earlier versions of MOVES2010a. This decision is IV. Conformity SIPs MOBILE. consistent with the existing conformity The proposed MOVES2010a regional For complete explanations of how criteria in section 93.111(b)(2) of the grace period extension would apply on MOVES2010a is to be implemented for conformity rule that requires the length the effective date of a final rule in all transportation conformity, including of the grace period to be based on ‘‘the nonattainment and maintenance areas. details about using MOVES2010a during degree of change in the model and the Section 51.390(a) of the conformity rule the grace period, refer to EPA’s existing scope of re-planning likely to be 8 states that the federal rule applies for MOVES policy guidance. necessary by MPOs in order to assure the portion of the requirements that are C. Rationale conformity.’’ not included in a state’s approved 10 MOVES2010a is EPA’s best tool for Today’s proposal would not delay the conformity SIP. Section 51.390(b) estimating criteria pollutant emissions, use of MOVES2010a in SIP further allows state conformity and it is a significant improvement over development or slow down past provisions to contain criteria and previous MOBILE models. State and progress toward using the new model procedures that are more stringent than local agencies have made significant for regional conformity analyses. As the federal requirements. However, in progress to date in using MOVES2010a, noted above, many state and local the case of states with conformity SIPs and EPA supports these efforts and agencies are already learning and that include the grace period provision encourages that they continue. applying MOVES2010a. Some are in 40 CFR 93.111(b)(1), EPA concludes However, as discussed above, revising existing SIP budgets using the that such states did not intend to require a shorter grace period than EPA, in challenges related to start-up and model new model, while others may be consultation with DOT, believes is application have been much greater in incorporating MOVES2010a into new needed. Therefore, since the the transition to MOVES2010a, maintenance plans or clean data MOVES2010a grace period extension compared to past transitions between determinations. Under EPA’s existing would be a new provision being added MOBILE model versions. As a result, MOVES policy guidance, new or revised to the conformity rule, it is not included EPA has determined that a one-year SIP budgets must still be based on in any current state conformity SIP and extension of the MOVES2010a grace MOVES2010a. For example, therefore would apply immediately, if period is necessary for state and local MOVES2010a continues to be required finalized, in all areas pursuant to agencies to complete the current for attainment SIPs for the 2006 24-hour section 51.390(a). transition. Today’s action would ensure PM2.5 NAAQS. Under the proposal, MOVES2010a would also be required In addition, section 51.390(c) of the that state and local governments have conformity rule requires states to submit the necessary time to implement the for any regional conformity analyses prior to March 2, 2013 if SIP budgets a new or revised conformity SIP to EPA conformity rule as originally intended. within 12 months of the Federal Since 1993, the fundamental purpose based on MOVES2010 or MOVES2010a are approved or found adequate sooner.9 Register publication date of final of section 93.111(b) of the conformity conformity rules in certain situations. rule has been to provide a sufficient In addition, today’s action would not States with approved conformity SIPs amount of time for MPOs and other state change the current MOVES2010a grace that are prepared in accordance with and local agencies to adapt to using new period for new PM2.5, PM10, and CO hot- current CAA requirements would not be emissions tools. As discussed above, the spot analyses for project-level required to submit new conformity SIP transition to a new emissions model for conformity determinations. EPA noted revisions under a final rule, since conformity involves more than learning previously that a two-year conformity section 93.111 of the conformity rule is to use the new model and preparing grace period was necessary to apply not contained in these SIPs. A input data and model output. After MOVES2010a for hot-spot analyses (75 conformity SIP prepared in accordance model start-up is complete, state and FR 79370). However, the transition to with current CAA requirements local agencies also need to consider how MOVES2010a for project-level hot-spot contains only the state’s criteria and the model affects regional conformity analyses does not involve the procedures for interagency consultation analysis results and whether SIP and/or complexity associated with the regional (40 CFR 93.105) and two additional transportation plan/TIP changes are level, where SIP budgets and/or provisions related to written necessary to assure future conformity transportation plans/TIPs may need to commitments for certain control and determinations. EPA believes that the be revised before regional conformity mitigation measures (40 CFR proposed one-time extension of the analyses based on MOVES2010a can be 93.122(a)(4)(ii) and 93.125(c)). However, current MOVES2010a regional grace completed. states with approved conformity SIPs period is critical to assure future Finally, in issuing this proposal, EPA that include section 93.111 from a conformity determinations based on is not proposing to proceed pursuant to previous rulemaking would be required MOVES2010a. or reopen as a general matter the process to submit a SIP revision within 12 EPA has the discretion to establish an and length of conformity grace periods months of the publication date of any extended grace period for MOVES2010a, for future emissions model approvals, final rule, although EPA strongly and today’s action is consistent with which were previously established in encourages these states to submit a SIP CAA section 176(c)(1) requirements. 1993 (58 FR 62211). The unique set of revision with only the three required EPA believes that the proposal to 11 circumstances involved in the current provisions. A state without an provide one additional year is transition warrants the proposed approved conformity SIP would not be appropriate due to this unique additional state and local flexibility required to submit a new conformity SIP transition from MOBILE6.2 to before MOVES2010a is required for regional conformity analyses. 10 A conformity SIP is required by the CAA and 8 ‘‘Policy Guidance on the Use of MOVES2010 for contains a state’s conformity requirements, State Implementation Plan Development, including the state’s specific interagency Transportation Conformity, and Other Purposes’’ 9 See Questions 5, 6, and 11 of ‘‘Policy Guidance consultation procedures. (EPA–420–B–09–046, December 2009) can be found on the Use of MOVES2010 for State Implementation 11 The conformity SIP may contain provisions on the EPA’s transportation conformity Web site at: Plan Development, Transportation Conformity, and more stringent than the federal requirements, and http://www.epa.gov/otaq/stateresources/transconf/ Other Purposes’’ (EPA–420–B–09–046, December in these cases, states would specify this intention policy.htm. 2009). in its original conformity SIP submission.
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within one year of a final rule, but small entity is defined as: (1) A small nonattainment and maintenance areas previous conformity SIP deadlines business as defined by the Small as a matter of law, and today’s action continue to apply. Business Administration’s (SBA) would merely revise one provision for For additional information on regulations at 13 CFR 121.201; (2) a transportation planning entities in conformity SIPs, please refer to the small governmental jurisdiction that is a subject areas to follow in meeting their January 2009 guidance entitled, government of a city, county, town, existing statutory obligations. Thus, ‘‘Guidance for Developing school district or special district with a Executive Order 13132 does not apply Transportation Conformity State population of less than 50,000; and (3) to this proposal. Implementation Plans’’ available on a small organization that is any not-for- F. Executive Order 13175: Consultation EPA’s Web site at: http://www.epa.gov/ profit enterprise that is independently and Coordination With Indian Tribal otaq/stateresources/transconf/policy/ owned and operated and is not Governments 420b09001.pdf. dominant in its field. After considering the economic This action does not have tribal V. Statutory and Executive Order impacts of today’s proposed rule on implications, as specified in Executive Reviews small entities, I certify that this action Order 13175 (65 FR 67249, November 9, A. Executive Order 12866: Regulatory would not have a significant economic 2000). The CAA requires transportation Planning and Review impact on a substantial number of small conformity to apply in any area that is entities. This proposal would directly designated nonattainment or Under Executive Order 12866 (58 FR affect federal agencies and MPOs that, maintenance by EPA. Because today’s 51735, October 4, 1993), this action is a by definition, are designated under proposal would not significantly or ‘‘significant regulatory action.’’ federal transportation laws only for uniquely affect the communities of Accordingly, EPA submitted this action metropolitan areas with a population of Indian tribal governments, Executive to the Office of Management and Budget at least 50,000. These organizations do Order 13175 does not apply to this (OMB) for review under Executive not constitute small entities within the action. Orders 12866 and 13563 (76 FR 3821, meaning of the RFA. Therefore, this January 21, 2011) and any changes made proposal would not impose any G. Executive Order 13045: Protection of in response to OMB recommendations requirements on small entities. Children From Environmental Health have been documented in the docket for and Safety Risks this action. D. Unfunded Mandates Reform Act This proposal is not subject to (UMRA) B. Paperwork Reduction Act Executive Order 13045 (62 FR 19885, This proposal does not contain a April 23, 1997) because it is not This action would not impose any Federal mandate that may result in economically significant as defined in new information collection burden. The expenditures of $100 million or more Executive Order 12866, and because the information collection requirements of for state, local, and tribal governments, Agency does not believe the EPA’s existing transportation in the aggregate, or the private sector in environmental health or safety risks conformity regulations and the any one year. This rule would merely addressed by this action present a proposed revisions in today’s action are implement already established law that disproportionate risk to children. already covered by EPA information imposes conformity requirements and collection request (ICR) entitled, would not itself impose requirements H. Executive Order 13211: Actions ‘‘Transportation Conformity that may result in expenditures of $100 Concerning Regulations That Determinations for Federally Funded million or more in any year. Thus, Significantly Affect Energy Supply, and Approved Transportation Plans, today’s proposal is not subject to the Distribution, or Use Programs and Projects.’’ OMB has requirements of sections 202 and 205 of This proposal is not a ‘‘significant previously approved the information the UMRA. energy action’’ as defined in Executive collection requirements contained in the This proposal is also not subject to the Order 13211 (66 FR 18355 (May 22, existing regulations at 40 CFR Part 93 requirements of section 203 of UMRA 2001)), because it is not likely to have under the provisions of the Paperwork because it contains no regulatory a significant adverse effect on the Reduction Act, 44 U.S.C. 3501 et seq. requirements that might significantly or supply, distribution, or use of energy. It and has assigned OMB control number uniquely affect small governments. This would not create a serious inconsistency 2060–0561. The OMB control numbers proposal would not significantly or or otherwise interfere with an action for EPA’s regulations in 40 CFR are uniquely impact small governments taken or planned by another agency listed in 40 CFR Part 9. because it directly affects federal regarding energy. This action is not C. Regulatory Flexibility Act agencies and MPOs that, by definition, subject to Executive Order 13211 are designated under federal because it does not have any adverse The Regulatory Flexibility Act (RFA) transportation laws only for energy effects. generally requires an Agency to prepare metropolitan areas with a population of I. National Technology Transfer and a regulatory flexibility analysis of rules at least 50,000. subject to notice-and-comment Advancement Act rulemaking requirements under the E. Executive Order 13132: Federalism Section 12(d) of the National Administrative Procedure Act or any This proposal does not have Technology Transfer and Advancement other statute unless the Agency certifies federalism implications. It would not Act of 1995 (NTTAA), Public Law 104– that the rule will not have a significant have substantial direct effects on states, 113, section 12(d) (15 U.S.C. 272 note) economic impact on a substantial on the relationship between the national directs EPA to use voluntary consensus number of small entities. Small entities government and states, or on the standards in its regulatory activities include small businesses, small not-for- distribution of power and unless to do so would be inconsistent profit organizations and small responsibilities among the various with applicable law or otherwise government jurisdictions. levels of government, as specified in impractical. Voluntary consensus For purposes of assessing the impacts Executive Order 13132. The CAA standards are technical standards (e.g., of today’s proposal on small entities, requires conformity to apply in certain material specifications, test methods,
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sampling procedures, and business FEDERAL MARITIME COMMISSION Commission’s current regulations. The practices) that are developed or adopted Commission’s regulations with respect by voluntary consensus standards 46 CFR Parts 530 and 531 to terms of service contracts and Non- bodies. The NTTAA directs EPA to [Docket No. 11–17] Vessel-Operating Common Carrier provide Congress, through OMB, (NVOCC) service arrangements (NSAs) explanations when the Agency decides RIN 3072–AC47 state that the terms, if they are not not to use available and applicable explicitly contained in the contracts, Certainty of Terms of Service must be ‘‘contained in a publication voluntary consensus standards. This Contracts and NVOCC Service proposal does not involve technical widely available to the public and well Arrangements known within the industry.’’ 46 CFR standards. Therefore, EPA is not 530.8(c)(2), 531.6(c)(2). considering the use of any voluntary AGENCY: Federal Maritime Commission. ACTION: Notice of proposed rulemaking. The Commission has received consensus standards. inquiries from the industry as to J. Executive Order 12898: Federal SUMMARY: The Federal Maritime whether certain freight rate indices meet Actions To Address Environmental Commission proposes to amend its rules the Commission’s standard, particularly Justice in Minority Populations and regarding certainty of terms of service its ‘‘widely available to the public’’ Low-Income Populations contracts and non-vessel-operating requirement. For example, until August common carrier service arrangements. 2011, the TSA index was not available Executive Order 12898 (59 FR 7629 The proposed rule is intended to to the public, even though some service (Feb. 16, 1994)) establishes federal provide common carriers and their contracts referenced TSA index before executive policy on environmental customers with certainty and flexibility its publication. In addition, CCFI, SCFI, justice. Its main provision directs if they decide to use long-term contracts and Drewry indices make their current federal agencies, to the greatest extent that adjust based on a freight rate index index levels available to the public practicable and permitted by law, to that reflects changes in market without charge, but access to their make environmental justice part of their conditions. historical data requires payment of subscription fees that can reach several mission by identifying and addressing, DATES: Comments or suggestions due on thousand dollars per year. as appropriate, disproportionately high or before November 28, 2011. As the Commission began to consider and adverse human health or ADDRESSES: Address all comments whether these service contracts environmental effects of their programs, concerning this proposed rule to: Karen referencing freight indices comport with policies, and activities on minority V. Gregory, Secretary, Federal Maritime its regulation, it decided to do a more populations and low-income Commission, 800 North Capitol Street, fundamental assessment of whether the populations in the United States. NW., Washington, DC 20573–0001, regulation in its current form is more EPA has determined that this action Phone: (202) 523–5725. restrictive than is necessary to protect would not have disproportionately high SUPPLEMENTARY INFORMATION: Submit the shipping public and carry out the and adverse human health or Comments: Submit an original and five purposes of the Shipping Act. environmental effects on minority or (5) copies in paper form, and if possible, When adopting the rules for low-income populations. The proposed send a PDF of the document by e-mail ‘‘[c]ertainty of terms’’ of service to [email protected]. Include in the rule involves a minor revision that contracts, the Commission recognized subject line: Docket No. 11–17, that through the Ocean Shipping Reform provides administrative relief but does Comments on Certainty of Terms of Act of 1998, Congress intended, by not change the conformity rule’s Service Contracts and NSAs. lifting the requirements that tariffs be underlying requirements for regional filed with the Commission, to allow Background conformity analyses. parties to service contracts more List of Subjects in 40 CFR Part 93 The Federal Maritime Commission freedom and flexibility in their (FMC or Commission) has found that an commercial arrangements. See 63 FR Administrative practice and increasing number of service contracts 71062, 71066 (Dec. 23, 1998). More procedure, Air pollution control, Carbon filed with the Commission reference recently, the President has directed monoxide, Clean Air Act, freight rate indices. These indices federal agencies to review their Environmental protection, Highways include, for example, the China regulations and to reduce burdens and and roads, Intergovernmental relations, Containerized Freight Index (CCFI), the promote flexibility where appropriate. Mass transportation, Nitrogen dioxide, Shanghai Containerized Freight Index See Exec. Order 13563, 76 FR 3821 (Jan. Ozone, Particulate matter, (SCFI), the Drewry Freight Insight 21, 2011); Exec. Order 13579, 76 FR Transportation, Volatile organic Index, and the Transpacific 41587 (Jul. 14, 2011). compounds. Stabilization Agreement (TSA) Index. The ocean freight rates in these Proposed Change Dated: October 4, 2011. negotiated service contracts adjust in Consistent with Congressional intent Lisa P. Jackson, increments based upon the changes in and the President’s directives in Administrator. the referenced index levels or their Executive Orders 13563 and 13579, the [FR Doc. 2011–26346 Filed 10–12–11; 8:45 am] annual or quarterly averages. It appears Commission seeks to revise its that some carriers and shippers in the regulations so that they are not BILLING CODE 6560–50–P ocean transportation industry are unnecessarily burdensome and do not seeking stability through long-term impede innovation and flexibility in contracts, while trying to preserve commercial arrangements, while flexibility to adjust contract rates ensuring continued compliance with the reflecting changes in market conditions. Shipping Act’s requirements. Questions have arisen, however, The proposed change would facilitate whether references to these indices in references to indices in service contracts service contracts are consistent with the and NSAs so that contracting parties can
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pursue long-term contracts with rates amend 46 CFR parts 530 and 531 as operating expenditures for Positive that adjust through an agreed and follows. Train Control (PTC) to break out those ascertainable manner. The change will expenses so that they can be viewed also ensure compliance with two PART 530—SERVICE CONTRACTS both as component parts of and important Shipping Act requirements. 1. The authority citation for part 530 separately from other capital First, the Shipping Act requires that a continues to read as follows: investments and expenses. PTC is an service contract be a ‘‘written contract,’’ automated system designed to prevent in which the ocean carrier ‘‘commits to Authority: 5 U.S.C. 553; 46 U.S.C. 305, train-to-train collisions and other a certain rate or rate schedule.’’ 46 40301–40306, 40501–40503, 41307. accidents. Rail carriers with traffic U.S.C. 40102(20). In order for a rate or 2. Revise § 530.8(c)(2) to read as routes that carry passengers and/or rate schedule to be ‘‘certain’’ in a valid follows: hazardous toxic-by-inhalation (TIH) or contract that is the product of a meeting poisonous-by-inhalation (PIH) materials, § 530.8 Service contracts. of the minds, the rate should be known as so designated under federal law, must or easily ascertainable to the contracting * * * * * implement PTC pursuant to federal parties. (c) * * * legislation. We propose to adopt Second, the Shipping Act requires (2) Make reference to terms not supplemental schedules to the R–1 to service contracts to be ‘‘filed’’ with the explicitly contained in the service require financial disclosure with respect Commission. 46 U.S.C. 40502(b). The contract itself unless those terms are to PTC to help inform the Board and the Commission believes that both the readily available to the parties and the public about the specific costs language and purpose of the Shipping Commission. attributable to PTC implementation. Act’s filing requirement would be * * * * * DATES: Comments on this proposal are undermined if contracting parties were due by December 12, 2011. Replies are permitted to include in service contracts PART 531—NVOCC SERVICE due by January 11, 2012. ARRANGEMENTS references to unfiled terms, in this case ADDRESSES: Comments may be important rate terms, which are not 3. The authority citation for Part 531 submitted either via the Board’s e-filing readily available to the Commission. continues to read as follows: format or in the traditional paper The Commission is especially interested format. Any person using e-filing should Authority: 46 U.S.C. 40103. in public comments on the possible attach a document and otherwise methods by which contracting parties 4. Revise § 531.6(c)(2) to read as comply with the instructions at the E- could ensure that the information follows: FILING link on the Board’s Web site, at referred to in service contracts is readily § 531.6 NVOCC Service Arrangements. http://www.stb.dot.gov. Any person available to the Commission. The submitting a filing in the traditional Commission is also interested in public * * * * * paper format should send an original comments on ways to reduce any (c) * * * and 10 copies to: Surface Transportation impediments to small shippers having (2) Make reference to terms not Board, Attn: Docket No. EP 706, 395 E the option of index-linked service explicitly contained in the NSA itself Street, SW., Washington, DC 20423– contracts. unless those terms are readily available 0001. The Commission also proposes the to the parties and the Commission. Copies of written comments received same change to the rule for NSAs, Reference may not be made to a tariff of by the Board will be posted to the which are NVOCCs’ contracts with their a common carrier other than the NVOCC Board’s Web site at http:// shippers and analogous to ocean acting as carrier party to the NSA. www.stb.dot.gov and will be available common carriers’ service contracts with * * * * * for viewing and self-copying in the their shippers. By the Commission. Board’s Public Docket Room, Suite 131, 395 E Street, SW., Washington, DC. Certifications Karen V. Gregory, Secretary. Copies of the comments will also be The Chairman of the Commission available by contacting the Board’s [FR Doc. 2011–26418 Filed 10–12–11; 8:45 am] certifies, pursuant to section 605(b) of Chief Records Officer at (202) 245–0236 the Regulatory Flexibility Act, 5 U.S.C. BILLING CODE 6730–01–P or 395 E Street, SW., Washington, DC. 601 et seq., that the rule will not, if 20423–0001. promulgated, have a significant FOR FURTHER INFORMATION CONTACT: Paul DEPARTMENT OF TRANSPORTATION economic impact on a substantial Aguiar, (202) 245–0323. Assistance for number of small entities. The proposed Surface Transportation Board the hearing impaired is available rule simply provides parties to service through Federal Information Relay contracts and NVOCC service 49 CFR Part 1241 Service (FIRS) at 1–800–877–8339. arrangements more freedom and SUPPLEMENTARY INFORMATION: As flexibility in their commercial [Docket No. EP 706] authorized by 49 U.S.C. 11145, the arrangements and will not adversely 1 Reporting Requirements for Positive Board requires large (Class I) rail affect contracting parties. carriers to submit annual reports, This rule is not a ‘‘major rule’’ under Train Control Expenses and Investments 5 U.S.C. 804(2). 1 The Board designates 3 classes of freight AGENCY: Surface Transportation Board, railroads based upon their operating revenues, for List of Subjects in 46 CFR Parts 530 and 3 consecutive years, in 1991 dollars, using the 531 DOT. following scale: Class I—$250 million or more; ACTION: Notice of proposed rulemaking. Class II—less than $250 million but more than $20 Freight, Maritime carriers, Reporting million; and Class III—$20 million or less. These and recordkeeping requirements. SUMMARY: The Board proposes to amend operating revenue thresholds are adjusted annually for inflation. 49 CFR pt. 1201, 1–1. Adjusted for For the reasons stated in the its rules to require rail carriers that inflation, the revenue threshold for a Class I rail supplementary information, the Federal submit to the Board ‘‘R–1’’ reports that carrier using 2009 data is $378,774,016. Today, Maritime Commission proposes to identify information on capital and there are 7 Class I carriers.
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known as R–1 reports. 49 CFR 1241.11.2 comments in opposition. On January 21, have indicated that they are already The R–1 reports contain information 2011, UP responded to PPG’s filing. incurring PTC-related costs to meet the about finances and operating statistics In Reporting Requirements for 2015 deadline for implementing the for each railroad. These reports ‘‘shall Positive Train Control Expenses & legislative mandate to install PTC.6 contain an account, in as much detail as Investments, EP 706 (STB served Feb. Moreover, PTC costs carry the the Board may require, of the affairs of 10, 2011), the Board instituted a distinction of representing a relatively the rail carrier * * *’’ 49 U.S.C. rulemaking proceeding in response to specific set of expenditures prompted 11145(b)(1). Currently, PTC UP’s petition. The Board also accepted directly by legislative mandate. expenditures are incorporated into the the late-filed comments from NSR and Although we are not here proposing R–1 report under the category of PPG, as well as the reply to a reply filed changes to our Uniform Rail Costing ‘‘capital investments and expenses’’; by UP. However, in that decision, we System, nor are we doing anything in however, PTC expenditures are not made no determination about the merits this proceeding that would change how separately broken out. of UP’s specific proposal, and stated costs are currently assigned in rate and that we would address the arguments other proceedings,7 we ought to be PTC is a system designed to prevent raised by the parties in their filings in aware of these expenditures. This will train-to-train collisions, over-speed a subsequent decision, i.e., this notice. help us to identify transportation derailments, incursions into established TFI argues that UP’s petition is industry changes that may require work zone limits, and the movement of unnecessary because a pending attention by the agency and to assist the a train through a switch left in the rulemaking already encompasses UP’s Board in preparing financial and wrong position. 49 U.S.C. 20157(i)(3). request. In Class I Railroad & Financial statistical summaries and abstracts to PTC systems may include digital data Reporting—Transportation of provide itself, Congress, other link communications networks, Hazardous Materials, EP 681 (STB government agencies, the transportation positioning systems, on-board served Jan. 5, 2009), the Board requested industry, and the public with computers on locomotives, throttle- comments on ‘‘whether and how it transportation data useful in making brake interfaces on locomotives, should improve its informational tools regulatory policy and business wayside interface units at switches and to better identify and attribute the costs’’ decisions. wayside detectors, and control center Confidentiality. UP argues that the 3 of transporting hazardous materials. TFI computers. The Rail Safety argues that this inquiry encompasses supplemental schedules regarding Improvement Act of 2008 requires Class PTC, and that in its comments in that specific expenditures on PTC and I rail carriers to implement PTC by proceeding, the Association of detailed information regarding TIH and December 31, 2015, on mainlines where American Railroads (AAR), of which UP PIH traffic should remain confidential. intercity rail passenger transportation or is a member, specifically discussed PTC UP asserts that detailed cost data on commuter rail passenger transportation and suggested changes to the Board’s PTC-specific investment and expenses is regularly scheduled, and/or on accounting and reporting requirements, is commercially sensitive, and UP is mainlines over which TIH or PIH, as including some of the same schedules concerned that ‘‘line-specific’’ operating designated in 49 CFR 171.8, 173.115, raised by UP in this docket.4 TFI claims data is a security issue. Nonetheless, and 173.132, are transported. 49 U.S.C. that gathering information on PTC R–1 data is not ‘‘line-specific,’’ and the 20157(a)(1). In complying with the Rail expenses is premature, because we have proposal here is to collect aggregated Safety Improvement Act of 2008, rail not yet decided in Class I Railroad & PTC expenditures figures. Therefore, carriers are expected to make Financial Reporting—Transportation of UP’s concerns about security appear expenditures related to installation, Hazardous Materials whether we will unwarranted, as the operating data does operation, and maintenance of PTC. change our accounting practices and not contain schedules of train On October 13, 2010, the Union how the Board will use such movements or other data that could be Pacific Railroad Company (UP), a Class information. used to compromise safety. I rail carrier, filed a petition requesting The Board recognizes that PTC Tracking Benefits. PPG opposes UP’s that the Board institute a rulemaking expenses fall under the umbrella of the petition for a rulemaking, but it argues proceeding to adopt supplemental many issues in Class I Railroad & that, if the Board moves forward with a rulemaking proceeding, the Board schedules that would require Class I Financial Reporting—Transportation of should broaden the scope of the carriers to separately identify PTC Hazardous Materials. But nothing proceeding to include a reporting expenditures in annual R–1 reports to precludes the Board from extracting the Board. On November 2, 2010, the from that complex proceeding for more between $9.55 billion and $13.21 billion. Positive Canadian Pacific Railway Company expeditious treatment the relatively Train Control Systems, 75 FR 2,598, 2,684 (Jan. 15, replied in support of UP’s petition and straightforward issue of identifying PTC 2010). That estimate may decrease, as FRA has The Fertilizer Institute (TFI) replied in expenses while continuing to consider proposed an amendment to its regulations that opposition. On November 24, 2010, the the remaining issues—including the would likely save the railroad industry certain expenses related to PTC implementation. Positive Norfolk Southern Railway Company regulatory uses to which PTC data may Train Control Systems, 76 FR 52,918 (Aug. 24, (NSR) late-filed comments in support of be put—separately. 2011). UP’s petition, and on January 18, 2011, The reporting requirement proposed 6 See UP’s Pet. 2; A Primer for PTC at CSX, http:// PPG Industries, Inc. (PPG) late-filed here—a PTC schedule separate from the www.csx.com/share/wwwcsx_mura/assets/File/ About_CSX/Projects_and_Partnerships/PTC_ R–1 filings currently required—should 101.pdf (last visited Sept. 28, 2011); Press Release, 2 Information about the R–1 report, including the provide us with important information. BNSF, BNSF Announces $3.5 Billion Capital schedules discussed in this rulemaking, past R–1 PTC expenses and investments, Commitment Program, (Feb. 7, 2011). reports, and a blank R–1 form, is available on the especially in the installation stage, are 7 Having the costs broken out may encourage Board’s Web site. STB Industry Data, http://www. 5 carriers to seek to recover specific PTC costs in stb.dot.gov/stb/industry/econ_reports.html. projected to be high. Class I rail carriers individual cases, but they are already free to do 3 The Federal Railroad Administration (FRA) that, and thus this rulemaking does not determine provides more information online. Federal Railroad 4 TFI Reply 2. the outcome of disputes over PTC expenses in Administration, Positive Train Control (PTC), 5 FRA estimates the total cost of PTC to the particular cases or in the broad proceeding in Class http://www.fra.dot.gov/pages/784.shtml (last visited industry, including development, equipment, I Railroad & Financial Reporting—Transportation Sept. 28, 2011). installation, and maintenance, over 20 years will be of Hazardous Materials.
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requirement that tracks any benefits of allow the Board to understand fully the The proposed rule would affect only PTC, including efficiencies on the lines railroads’ PTC expenditures. entities that are required to file R–1 that have PTC installed. PPG also asks In addition to separating capital reports; these reports are only required the Board to gather data on any expenses and operating expenses to be submitted by Class I carriers. 49 efficiency gains caused by PTC on lines incurred by the railroad for PTC, the CFR 1241.1. Class I carriers are all large that do not have PTC installed. In reply, respondent entity should include by railroads; 11 accordingly, there will be UP states that it would not oppose a footnote disclosure the value of funds no impact on small railroads (small separate proceeding to address the from government transfers, including entities). benefits from PTC, but UP opposes grants, subsidies, and other Paperwork Reduction Act. Pursuant to broadening this proceeding to require contributions or reimbursements, used the Paperwork Reduction Act (PRA), 44 the reporting of benefits from PTC or designated to purchase or create PTC U.S.C. 3501–3549, and Office of because it will add complications and assets or to offset PTC costs.10 These Management and Budget (OMB) delay. UP argues the railroads are amounts represent non-railroad monies regulations at 5 CFR 1320.8(d)(3), the incurring real measurable costs to install used or designated for PTC and would Board seeks comments regarding: (1) PTC now, while calculating benefits provide for full disclosure of PTC costs. Whether this collection of information, from PTC, which will occur in the This disclosure would identify the as modified in the proposed rule and future, would be speculative and nature and location of the project by further described in Appendix A, is complex. FRA identification, if applicable. This necessary for the proper performance of PPG has not shown that its request is additional information will help the the functions of the Board, including practical or warranted at this time. Board to monitor the financing of PTC whether the collection has practical While carriers state that they are installation. utility; (2) the accuracy of the Board’s incurring costs now to meet the 2015 UP also requests that the Board burden estimates; (3) ways to enhance implementation deadline, any include schedule 755 (information on the quality, utility, and clarity of the efficiencies that arise will occur after carloads, car-miles, and train-miles) in information collected; and (4) ways to implementation. Moreover, identifying the PTC Supplement. However, we minimize the burden of the collection of the costs associated with implementing believe a supplement to schedule 755 is information on the respondents, PTC appears to be relatively unnecessary to monitor the including the use of automated straightforward, and UP has proposed a implementation of PTC, because collection techniques or other forms of viable approach, described below, to gathering such data would not aid us in information technology, when supplement the R–1 reports and capture tracking expenditures made for PTC. appropriate. Information pertinent to this data.8 By contrast, it is not clear Nevertheless, interested parties may these issues is included in Appendix C. comment on whether any final rule the how, at this point, we would identify This proposed rule will be submitted to Board promulgates should require the those productivity gains that may arise OMB for review as required under 44 reporting of such information. Any such as a result of PTC investments, and PPG U.S.C. 3507(d) and 5 CFR 1320.11. comments should address whether has not proposed a method of doing so. A copy of this decision will be served collecting such information would assist Mechanics of the Change. Our upon the Chief Counsel for Advocacy, the Board in monitoring PTC proposed rule change would require a Office of Advocacy, U.S. Small Business implementation and, if so, how it would ‘‘PTC Supplement’’ to be filed along Administration, Washington, DC 20416. do so. This action will not significantly with the R–1 annual report (which Regulatory Flexibility Act. The 9 affect either the quality of the human would not change). The supplement Regulatory Flexibility Act of 1980, 5 would provide for PTC versions of environment or the conservation of U.S.C. 601–612, generally requires a energy resources. schedules 330 (road property and description and analysis of new rules equipment improvements), 332 that would have a significant economic List of Subjects in 49 CFR Part 1241 (depreciation base and rates—road impact on a substantial number of small property and equipment), 335 Railroads, Reporting and entities. In drafting a rule, an agency is recordkeeping requirements. (accumulated depreciation), 352B required to: (1) Assess the effect that its (investment in railway property), and regulation will have on small entities; Decided: October 3, 2011. 410 (railway operating expenses) (2) analyze effective alternatives that By the Board, Chairman Elliott, Vice containing the dollar amounts that may minimize a regulation’s impact; Chairman Begeman, and Commissioner would reflect only the amounts Mulvey. Commissioner Mulvey dissented and (3) make the analysis available for with a separate expression. attributable to PTC for the filing year. public comment. §§ 601–604. In its Jeffrey Herzig, Also, the PTC Supplement would notice of proposed rulemaking, the contain PTC versions of schedules 700 agency must either include an initial Clearance Clerk. and 720, to report the aggregate mileage regulatory flexibility analysis, § 603(a), Commissioner Mulvey, dissenting: on which PTC is installed as of the date or certify that the proposed rule would In EP 681, Class I Railroad of filing, and schedule 710 to identify not have a ‘‘significant impact on a Accounting & Financial Reporting— the number of locomotives equipped substantial number of small entities,’’ Transportation of Hazardous Materials, with PTC. Railroads would also report, § 605(b). The impact must be a direct the Board is considering whether and by footnote in each supplement impact on small entities ‘‘whose how it should update its railroad schedule, PTC-related expenditures for conduct is circumscribed or mandated’’ reporting requirements and the Uniform passenger-only service not otherwise by the proposed rule. White Eagle Coop. Railroad Costing System to better captured in the individual schedules to Ass’n v. Conner, 553 F.3d 467, 480 (7th capture the operating costs of Cir. 2009). transporting hazardous materials. By 8 The carriers’ R–1 forms are independently The proposed rule, if adopted, will inclusion of the word ‘‘whether,’’ the audited; the Board monitors these audits and can not have a significant impact on a Board made clear in Ex Parte 681 that take action if a carrier is misreporting expenses as PTC related. substantial number of small entities. it has not decided that it should allow 9 Appendix B features samples of the proposed PTC versions of the schedules. 10 See infra App. B, Table Footnote: PTC Grants. 11 See supra note 2.
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hazardous materials transportation costs growing as the railroad industry moves shall be separately identified in a to be used in a prescribed way in Board closer to the current statutory deadline supplement to the Railroad Annual proceedings. for compliance. Should the Board Report Form R–1 and submitted with The questions under consideration in implement a comprehensive approach the Railroad Annual Report Form R–1. EP 681 are important ones. The to the costing issues associated with This supplement shall identify PTC- resolution has the potential to impact hazardous materials, we may be able to related expenditures on road property the rates paid by shippers of hazardous minimize the complexity and and equipment improvements, materials and, therefore, must be expenditures associated with litigating depreciation of road property and examined carefully. To gain the this issue in individual Board equipment, accumulated depreciation, broadest possible comments from proceedings. I fear that the ‘‘cart before investment in railway property, and stakeholders, the Board began its the horse’’ approach that the Board is railway operating expenses. The consideration with an Advance Notice initiating today could do the opposite. supplement shall also identify the total of Proposed Rulemaking. Even though For the reasons set forth in the mileage on which carriers install PTC the record in that ANPR has been preamble, the Surface Transportation and the number of locomotives complete since February 2009, the Board proposes to amend part 1241 of equipped with PTC. The supplement Board has yet to propose a rule title 49, chapter X, subchapter C, of the will include PTC-related expenditures regarding the treatment of hazardous Code of Federal Regulations as follows: for passenger-only service not otherwise materials transportation costs in Board captured in the individual schedules. In proceedings. PART 1241—ANNUAL, SPECIAL, OR addition to separating capital expenses In light of this history, today’s PERIODIC REPORTS—CARRIERS and operating expenses incurred by the decision to propose rules that would SUBJECT TO PART I OF THE railroad for PTC, the respondent entity require PTC-related costs to be INTERSTATE COMMERCE ACT should include the value of funds separately reported from other capital 1. The authority citation for part 1241 received from government transfers to expenditures is premature. The Board continues to read as follows: include grants, subsidies, and other should first decide how such costs may contributions or reimbursements that be used in Board proceedings. Indeed, Authority: 49 U.S.C. 11145. the respondent entity used to purchase should the Board ultimately determine 2. Amend § 1241, by adding or create PTC assets or to offset PTC that hazardous materials transportation paragraph (b) to read as follows: costs. costs can be attributed to particular § 1241.11 Annual reports of class I Note: The following appendices will not movements, any determination appear in the Code of Federal Regulations. regarding how the information can be railroads. used could very well inform how it * * * * * Appendix A should be reported. (b) Expenditures and certain Moreover, we must decide the issues statistical information, as described Proposed PTC Versions of Schedules: 330, raised in EP 681 soon. The costs below, for Positive Train Control (PTC) 332, 335, 352B, 410, 700, 710, and 720 associated with PTC are no doubt installation, maintenance, and operation BILLING CODE 4915–01–P
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BILLING CODE 4915–01–C system to the Board’s Uniform System of this information to more effectively carry out Appendix B Accounts (USOA), which ensures that the other of its regulatory responsibilities, information will be presented in a consistent including: the regulation of maximum rail The additional information below is format across all reporting railroads, see 49 rates; acting on railroad requests for authority included to assist those who may wish to U.S.C. 11141–43, 11161–64, 49 CFR 1200– to engage in Board-regulated financial submit comments pertinent to review under 1201. transactions such as mergers, acquisitions of the Paperwork Reduction Act: Frequency: Annually. control, and consolidations, see 49 U.S.C. Description of Collection Total Burden Hours (annually including all 11323–11324; analyzing the information that respondents): Up to 5,600 hours annually for the Board obtains through the annual railroad Title: Class I Railroad Annual Report. the entire R–1 report. OMB Control Number: 2140–0009. industry waybill sample, see 49 CFR part Total ‘‘Non-hour Burden’’ Cost: No ‘‘non- 1244; measuring off-branch costs in railroad STB Form Number: R–1. hour cost’’ burdens associated with this Type of Review: Modification of approved abandonment proceedings, in accordance collection have been identified. collection. with 49 CFR 1152.32(n); developing the ‘‘rail Needs and Uses: Annual R–1 reports are Respondents: Class I railroads. cost adjustment factors,’’ in accordance with required to be filed by Class I railroads under Number of Respondents: 7. 49 U.S.C. 10708; and conducting Estimated Time per Response: The 49 U.S.C. 11145. The reports show investigations and rulemakings. proposed rule change that affects the R–1 expenditures and operating statistics of the The proposed identification of PTC report will not change the time per response, carriers. Expenditures include costs for right- information in the supplement to the R–1 but it will require minimal time to adjust the of-way and structures, equipment, train and reports will help the Board monitor the process for reporting. Based on the limited yard operations, and general and emergence of PTC in the rail industry. This amount of information involved, we estimate administrative expenses. Operating statistics notice does not propose that the Board use that the entire R–1 collection should not take include such items as car-miles, revenue-ton- the identified PTC information for any more than 800 hours annually per Class I miles, and gross ton-miles. The reports are additional purposes such as changing the railroad. This estimate includes time spent used by the Board, other Federal agencies, Board’s Uniform Rail Costing System or how and industry groups to monitor and assess reviewing instructions; searching existing costs are currently assigned in rate and other railroad industry growth, financial stability, data sources; gathering and maintaining the proceedings. data needed; completing and reviewing the traffic, and operations, and to identify collection of information; and converting the industry changes that may affect national [FR Doc. 2011–26310 Filed 10–12–11; 8:45 am] data from the carrier’s individual accounting transportation policy. The Board also uses BILLING CODE 4915–01–P
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Notices Federal Register Vol. 76, No. 198
Thursday, October 13, 2011
This section of the FEDERAL REGISTER ADDRESS: The conference call access 2. The meeting agenda will focus on contains documents other than rules or number and password to the meeting existing Environmental Education proposed rules that are applicable to the will be posted on the US Forest Service, programs and improving engagement public. Notices of hearings and investigations, Rocky Mountain Region, RRAC Web site with regional school groups. The committee meetings, agency decisions and at: http://www.fs.usda.gov/goto/r2/ meeting is open to the public. Written rulings, delegations of authority, filing of petitions and applications and agency recreation/rac. Send written comments comments are invited and should be statements of organization and functions are to Stephen Sherwood, Designated sent to William P. Lisowsky, Area examples of documents appearing in this Federal Official for the Rocky Mountain Supervisor, Land Between The Lakes, section. Region and Colorado Recreation 100 Van Morgan Drive, Golden Pond, Resource Advisory Committee, 740 KY, 42211 and must be received by Simms Street Golden, CO 80401; October 27, 2011 in order for copies to DEPARTMENT OF AGRICULTURE [email protected]. be provided to the members for this FOR FURTHER INFORMATION CONTACT: meeting. Board members will review Animal and Plant Health Inspection written comments received, and at their Service Stephen Sherwood, Designated Federal Official for the Rocky Mountain Region request, oral clarification may be requested for a future meeting. [Docket No. APHIS–2011–0039] and Colorado Recreation Resource Advisory Committee at the above DATES: The meeting will be held Notice of Decision To Authorize the address. Thursday, November 3, 2011 from 9 a.m. to approximately 4 p.m. C.S.T. Importation of Fresh Apricot, Sweet SUPPLEMENTARY INFORMATION: The ADDRESSES: Cherry, and Plumcot Fruit From South meeting is open to the public. The The meeting will be held at Africa Into the Continental United meeting agenda will be posted on the Land Between The Lakes at the Brandon States RRAC Web site at http:// Spring Group Center, 236 Brandon Spring Road, Dover, TN 37058. Correction www.fs.usda.gov/goto/r2/recreation/rac. Committee discussion is limited to FOR FURTHER INFORMATION CONTACT: In notice document 2011–25490 Forest Service staff, Committee Linda L. Taylor, Advisory Board appearing on pages 61340–61341 in the members and alternates. However, Liaison, Land Between The Lakes, 100 issue of October 4, 2011, make the persons who wish to bring recreation fee Van Morgan Drive, Golden Pond, KY following correction: matters to the attention of the 42211, 270–924–2002. Individuals who On page 61341, in the first column, in Committee may file written statements use telecommunication devices for the the DATES section, ‘‘November 3, 2011’’ with the Committee staff before or after deaf (TDD) may call the Federal should read ‘‘October 4, 2011’’. the meeting. A public input session will Information Relay Service (FIRS) at 1– [FR Doc. C1–2011–25490 Filed 10–12–11; 8:45 am] be provided and individuals who made 800–877–8339. This service is available BILLING CODE 1505–01–P written requests by October 24, 2011 7 days a week, 24 hours a day. will have the opportunity to address the SUPPLEMENTARY INFORMATION: The Committee at the meeting if time allows. meeting is open to the public. Board DEPARTMENT OF AGRICULTURE The RRAC is authorized by the discussion is limited to Forest Service Federal Land Recreation Enhancement staff and Board members. Forest Service Act, which was signed into law by Dated: September 15, 2011. Notice of Meeting of the Colorado President Bush in December 2004. William P. Lisowsky, Recreation Resource Advisory Dated: October 5, 2011. Area Supervisor, Land Between The Lakes. Committee; Federal Lands Recreation Maribeth Gustafson, [FR Doc. 2011–25757 Filed 10–12–11; 8:45 am] Enhancement Act Acting Regional Forester, Rocky Mountain BILLING CODE 3410–11–P Region. AGENCY: Rocky Mountain Region, Forest [FR Doc. 2011–26425 Filed 10–12–11; 8:45 am] Service, USDA. BILLING CODE 3410–11–M DEPARTMENT OF AGRICULTURE ACTION: Meeting of the Colorado Recreation Resource Advisory Forest Service Committee. DEPARTMENT OF AGRICULTURE Ashley Resource Advisory Committee SUMMARY: The Colorado Recreation Forest Service AGENCY: Resource Advisory Committee (RRAC) Forest Service, USDA. will meet by telephone conference call. Meeting of the Land Between The ACTION: Notice of meeting. Lakes Advisory Board The purpose of the meeting is to orient SUMMARY: The Ashley Resource RRAC members and alternates to the AGENCY: Advisory Committee will conduct a laws, rules and regulations that pertain Forest Service, USDA. ACTION: Notice of meeting. meeting to review project status and to the operation of the RRAC. No fee ammendments to project work. The proposals will be discussed at this SUMMARY: The Land Between The Lakes committee is meeting as authorized meeting. Advisory Board will hold a meeting on under the Secure Rural Schools and DATES: The meeting will be held November 3, 2011. Notice of this Community Self-Determination Act October 26, 2011, 10 a.m. to 3 p.m. meeting is given under the Federal (Pub. L 110–343) and in compliance MDT. Advisory Committee Act, 5 U.S.C. App with the Federal Advisory Committee
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Act. The purpose of the meeting is COMMISSION ON CIVIL RIGHTS Dated in Washington, DC, October 6, 2011. review the status of approved projects Peter Minarik, and consider ammendments to the Agenda and Notice of Public Meeting Acting Chief, Regional Programs scope of work on projects funded for of the Louisiana Advisory Committee Coordination Unit. implementation, approve meeting [FR Doc. 2011–26401 Filed 10–12–11; 8:45 am] minutes, set the next meeting date, time Notice is hereby given, pursuant to BILLING CODE 6335–01–P and location and receive public the provisions of the rules and comment. regulations of the U.S. Commission on Civil Rights (Commission), and the COMMISSION ON CIVIL RIGHTS DATES: The meeting will be held Federal Advisory Committee Act November 10, 2011, from 6 p.m. to 8 (FACA) that a planning meeting of the Sunshine Act Notice p.m. Louisiana Advisory Committee to the Commission will convene by conference AGENCY: United States Commission on ADDRESSES: The business meeting will call at 2 p.m. and adjourn at Civil Rights. be held in the fire center conference approximately 5 p.m. on Monday, ACTION: Notice of meeting. room of the Ashley National Forest at November 7, 2011. The purpose of this 355 North Vernal Avenue, Vernal, Utah meeting is to continue planning the DATE AND TIME: Friday, October 21, 2011; 84078. Written comments should be Committee’s civil rights project. 9:30 a.m. EDT sent to Ashley National Forest, 355 This meeting is available to the public PLACE: 624 Ninth Street, NW., Room North Vernal Avenue, Vernal, UT through the following toll-free call-in 540, Washington, DC 20425. 84078. Comments may also be sent via number: 1 (866) 393–8073, conference Meeting Agenda e-mail to [email protected], or via call access code number *3046445*. facsimile to 435–781–5142. Any interested member of the public This meeting is open to the public. All comments, including names and may call this number and listen to the I. Approval of Agenda addresses when provided, are placed in meeting. Callers can expect to incur II. Approval of the September 9, 2011 the record and are available for public charges for calls they initiate over Meeting Minutes inspection and copying. The public may wireless lines, and the Commission will III. Statement on the passing of Rev. inspect comments received at Ashley not refund any incurred charges. Callers Shuttlesworth and Professor Derrick National Forest, 355 North Vernal will incur no charge for calls they Bell initiate over land-line connections to Avenue, Vernal, UT. IV. Program Planning Update and the toll-free telephone number. Persons discussion of projects: FOR FURTHER INFORMATION CONTACT: with hearing impairments may also • Louis Haynes, RAC Coordinator, Ashley follow the proceedings by first calling Approval of School Discipline National Forest, (435) 781–5105; e-mail: the Federal Relay Service at 1–800–977– briefing report [email protected]. 8339 and providing the Service with the • Approval of Scope of Discovery Plan for VRA Report Individuals who use conference call number and contact name Farella E. Robinson. telecommunication devices for the deaf V. Management and Operations • (TDD) may call the Federal Information To ensure that the Commission Staff Director’s report Relay Service (FIRS) at 1–800–877–8339 secures an appropriate number of lines • Discussion of the use of between 8 a.m. and 8 p.m., Eastern for the public, persons are asked to Commission Letterhead Standard Time, Monday through Friday. register by contacting Corrine Sanders of • Discussion of the use of USCCR the Central Regional Office and TTY/ email accounts SUPPLEMENTARY INFORMATION: The TDD telephone number, by 4 p.m. on • Discussion of date change for business meeting is open to the public. November 1, 2011. The following business will be December Commission Meeting Members of the public are entitled to VI. State Advisory Committee Issues: conducted: (1) Welcome and roll call; submit written comments. The • Re-chartering the California SAC (2) Approval of meeting minutes; (3) comments must be received in the • Review of approved projects and regional office by November 18, 2011. Re-chartering the Nebraska SAC modification to scope of work; (4) The address is U.S. Commission on • Re-chartering the Arizona SAC review of next meeting purpose, Civil Rights, 400 State Avenue, Suite VII. Adjourn location, and date; (5) Receive public 908, Kansas City, Kansas 66101. CONTACT PERSON FOR FURTHER comment. Persons who wish to bring Comments may be e-mailed to INFORMATION: Lenore Ostrowsky, Acting related matters to the attention of the [email protected]. Records generated Chief, Public Affairs Unit (202) 376– Committee may file written statements by this meeting may be inspected and 8591. with the committee staff before or after reproduced at the Central Regional the meeting. Public input sessions will Office, as they become available, both Hearing-impaired persons who will attend the meeting and require the be provided and individuals who made before and after the meeting. Persons services of a sign language interpreter written requests by November 5, 2011 interested in the work of this advisory should contact Pamela Dunston at (202) will have the opportunity to address the committee are advised to go to the 376–8105 or at [email protected] committee at these meetings. Commission’s Web site, http:// www.usccr.gov, or to contact the Central at least seven business days before the Dated: October 4, 2011. Regional Office at the above email or scheduled date of the meeting. Nicholas T. Schmelter, street address. Dated: October 11, 2011. Acting Forest Supervisor. The meeting will be conducted Kimberly A. Tolhurst, [FR Doc. 2011–26423 Filed 10–12–11; 8:45 am] pursuant to the provisions of the rules Senior Attorney-Advisor. BILLING CODE 3410–11–M and regulations of the Commission and [FR Doc. 2011–26583 Filed 10–11–11; 11:15 am] FACA. BILLING CODE 6335–01–P
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DEPARTMENT OF COMMERCE Among other changes, the sunset date Reservation is defined as any area that for minority language assistance is an American Indian or Alaska Native Bureau of the Census provisions set forth in Section 203 of the area identified for purposes of the Act was extended to August 5, 2032. [Docket Number 110921596–1557–01] decennial census. For the 2010 Census, Section 203 mandates that a state or these areas were identified by the Voting Rights Act Amendments of political subdivision must provide federally recognized tribal governments, 2006, Determinations Under Section language assistance to voters if more Bureau of Indian Affairs, and state 203 than five (5) percent of voting age governments. The Census Bureau citizens are members of a single- worked with American Indian tribes AGENCY: Bureau of the Census, language minority group and do not and Alaska Natives to identify statistical Department of Commerce. ‘‘speak or understand English areas, such as Oklahoma Tribal ACTION: Notice of determination. adequately enough to participate in the Statistical Areas (OTSA), State electoral process’’ and if the rate of Designated Tribal Statistical Areas SUMMARY: As required by Section 203 of those citizens who have not completed (SDTSA), and Alaska Native Village the Voting Rights Act of 1965, as the fifth grade is higher than the Statistical Areas (ANVSA). amended, this notice publishes the national rate of voting age citizens who Pursuant to Section 203, the Census Bureau of the Census (Census Bureau) have not completed the fifth grade. Bureau Director has the responsibility to Director’s determinations as to which When a state is covered for a particular determine which states and political political subdivisions are subject to the language minority group, an exception subdivisions are subject to the minority minority language assistance provisions is made for any political subdivision in language assistance provisions of of the Act. As of this date, those which less than five (5) percent of the Section 203. The state and political jurisdictions that are listed as covered voting age citizens are members of the subdivisions obligated to comply with by Section 203 have a legal obligation to minority group and are limited in the requirements are listed in the provide the minority language English proficiency, unless the political attachment to this Notice. assistance prescribed by the Act. subdivision is covered independently. A DATES: Effective Date: This notice is political subdivision is also covered if Section 203 also provides that the effective on October 13, 2011. more than 10,000 of the voting age ‘‘determinations of the Director of the citizens are members of a single- Census under this subsection shall be FOR FURTHER INFORMATION CONTACT: For language minority group, do not ‘‘speak effective upon publication in the information regarding this notice, please or understand English adequately Federal Register and shall not be contact Ms. Catherine M. McCully, enough to participate in the electoral subject to review in any court.’’ Chief, Census Redistricting Data Office, process,’’ and the rate of those citizens Therefore, as of this date, those Bureau of the Census, United States who have not completed the fifth grade jurisdictions that are listed as covered Department of Commerce, Room DIR is higher than the national rate of voting by Section 203 have legal obligation to 8H019, 4600 Silver Hill Rd, Washington age citizens who have not completed the provide the minority language DC 20233, by telephone at 301–763– fifth grade. assistance prescribed in Section 203 of 4039, or visit the Redistricting Data Finally, if more than five (5) percent the Act. In the cases, where a state is Office Internet site at http:// of the American Indian or Alaska Native covered, those counties or county www.census.gov/rdo/. voting age citizens residing within an equivalents not displayed in the For information regarding the American Indian Reservations (and off- attachment are exempt from the applicable provisions of the Act, please reservation trust lands) are members of obligation. Those jurisdictions subject to contact T. Christian Herren, Jr., Chief, a single language minority group, do not Section 203 of the Act previously, but Voting Section, Civil Rights Division, ‘‘speak or understand English not included on the list below, are no United States Department of Justice, adequately enough to participate in the longer obligated to comply with Section Room 7254–NWB, 950 Pennsylvania electoral process,’’ and the rate of those 203. The previous determinations under Avenue, NW., Washington, DC 20530, citizens who have not completed the Section 4(f)(4) of the Voting Rights Act by telephone at (800) 253–3931 or visit fifth grade is higher than the national remain in effect and are unaffected by the Voting Section Internet site at rate of voting age citizens who have not this determination. (See Title 28, Code http://www.justice.gov/crt/about/vot/. completed the fifth grade, any political of Federal Regulations, part 55, SUPPLEMENTARY INFORMATION: In July subdivision, such as a county, which Appendix (2010)). 2006, Congress amended the Voting contains all or any part of that Indian Rights Act of 1965, Title 42, United reservation, is covered by the minority Dated: October 5, 2011. States Code (U.S.C.), 1973 et seq. (See language assistance provision set forth Robert M. Groves, Pub. L. 109–246, 120 Stat. 577 (2006)). in Section 203. An American Indian Director, Bureau of the Census.
COVERED AREAS FOR VOTING RIGHTS BILINGUAL ELECTION MATERIALS—2010
State and political subdivision Language minority group
Alaska: Aleutians East Borough ...... Asian (Filipino). Aleutians East Borough ...... Hispanic. Aleutians West Census Area ...... Asian (Filipino). Bethel Census Area ...... Alaska Native (Inupiat). Bethel Census Area ...... Alaska Native (Yup’ik). Dillingham Census Area ...... Alaska Native (Yup’ik). Nome Census Area ...... Alaska Native (Inupiat). Nome Census Area ...... Alaska Native (Yup’ik). North Slope Borough ...... Alaska Native Tribe—Tribe not Specified. North Slope Borough ...... Alaska Native (Inupiat).
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Northwest Arctic Borough ...... Alaska Native (Inupiat). Wade Hampton Census Area ...... Alaska Native (Inupiat). Wade Hampton Census Area ...... Alaska Native (Yup’ik). Yukon-Koyukuk Census Area ...... Alaska Native (Alaskan Athabascan). Arizona: Apache County ...... American Indian (Navajo). Apache County ...... American Indian (Pueblo). Coconino County ...... American Indian (Hopi). Coconino County ...... American Indian (Navajo). Coconino County ...... American Indian (Yuma). Maricopa County ...... American Indian (Tohono O’Odham). Maricopa County ...... Hispanic. Mohave County ...... American Indian (Yuma). Navajo County ...... American Indian (Hopi). Navajo County ...... American Indian (Navajo). Pima County ...... American Indian (Tohono O’Odham). Pima County ...... American Indian (Yaqui). Pima County ...... Hispanic. Pinal County ...... American Indian (Tohono O’Odham). Santa Cruz County ...... Hispanic. Yavapai County ...... American Indian (Yuma). Yuma County ...... American Indian (Yuma). Yuma County ...... Hispanic. California: State Coverage ...... Hispanic. Alameda County ...... Asian (Chinese). Alameda County ...... Asian (Filipino). Alameda County ...... Hispanic. Alameda County ...... Asian (Vietnamese). Colusa County ...... Hispanic. Contra Costa County ...... Hispanic. Fresno County ...... Hispanic. Glenn County ...... Hispanic. Imperial County ...... Hispanic. Kern County ...... Hispanic. Kings County ...... Hispanic. Los Angeles County ...... Asian (Asian Indian). Los Angeles County ...... Asian (Chinese). Los Angeles County ...... Asian (Filipino). Los Angeles County ...... Hispanic. Los Angeles County ...... Asian (Japanese). Los Angeles County ...... Asian (Korean). Los Angeles County ...... Asian (Other Asian—Not specified). Los Angeles County ...... Asian (Vietnamese). Madera County ...... Hispanic. Merced County ...... Hispanic. Monterey County ...... Hispanic. Napa County ...... Hispanic. Orange County ...... Asian (Chinese). Orange County ...... Hispanic. Orange County ...... Asian (Korean). Orange County ...... Asian (Vietnamese). Riverside County ...... Hispanic. Sacramento County ...... Asian (Chinese). Sacramento County ...... Hispanic. San Benito County ...... Hispanic. San Bernardino County ...... Hispanic. San Diego County ...... Asian (Chinese). San Diego County ...... Asian (Filipino). San Diego County ...... Hispanic. San Diego County ...... Asian (Vietnamese). San Francisco County ...... Asian (Chinese). San Francisco County ...... Hispanic. San Joaquin County ...... Hispanic. San Mateo County ...... Asian (Chinese). San Mateo County ...... Hispanic. Santa Barbara County ...... Hispanic. Santa Clara County ...... Asian (Chinese). Santa Clara County ...... Asian (Filipino). Santa Clara County ...... Hispanic. Santa Clara County ...... Asian (Vietnamese). Stanislaus County ...... Hispanic.
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State and political subdivision Language minority group
Tulare County ...... Hispanic. Ventura County ...... Hispanic. Colorado: Costilla County ...... Hispanic. Denver County ...... Hispanic. Rio Grande County ...... Hispanic. Connecticut: Bridgeport town ...... Hispanic. East Hartford town ...... Hispanic. Hartford town ...... Hispanic. Meriden town ...... Hispanic. New Britain town ...... Hispanic. New Haven town ...... Hispanic. New London town ...... Hispanic. Waterbury town ...... Hispanic. Windham town ...... Hispanic. Florida: State Coverage ...... Hispanic. Broward County ...... Hispanic. Hardee County ...... Hispanic. Hendry County ...... Hispanic. Hillsborough County ...... Hispanic. Lee County ...... Hispanic. Miami-Dade County ...... Hispanic. Orange County ...... Hispanic. Osceola County ...... Hispanic. Palm Beach County ...... Hispanic. Polk County ...... Hispanic. Hawaii: Honolulu County ...... Asian (Chinese). Honolulu County ...... Asian (Filipino). Honolulu County ...... Asian (Japanese). Maui County ...... Asian (Filipino). Illinois: Cook County ...... Asian (Asian Indian). Cook County ...... Asian (Chinese). Cook County ...... Hispanic. DuPage County ...... Hispanic. Kane County ...... Hispanic. Lake County ...... Hispanic. Kansas: Finney County ...... Hispanic. Ford County ...... Hispanic. Grant County ...... Hispanic. Seward County ...... Hispanic. Maryland: Montgomery County ...... Hispanic. Massachusetts: Boston city ...... Hispanic. Chelsea city ...... Hispanic. Fitchburg city ...... Hispanic. Holyoke city ...... Hispanic. Lawrence city ...... Hispanic. Lowell city ...... Hispanic. Lynn city ...... Hispanic. Quincy city ...... Asian (Chinese). Revere city ...... Hispanic. Southbridge town ...... Hispanic. Springfield city ...... Hispanic. Worcester city ...... Hispanic. Michigan: Clyde township 1 ...... Hispanic. Hamtramck city ...... Asian (Bangladeshi). Hartford city ...... Hispanic. Mississippi: Attala County ...... American Indian (Choctaw). Jackson County ...... American Indian (Choctaw). Jones County ...... American Indian (Choctaw). Kemper County ...... American Indian (Choctaw). Leake County ...... American Indian (Choctaw). Neshoba County ...... American Indian (Choctaw). Newton County ...... American Indian (Choctaw).
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State and political subdivision Language minority group
Noxubee County ...... American Indian (Choctaw). Scott County ...... American Indian (Choctaw). Winston County ...... American Indian (Choctaw). Nebraska: Colfax County ...... Hispanic. Dakota County ...... Hispanic. Dawson County ...... Hispanic. Nevada: Clark County ...... Asian (Filipino). Clark County ...... Hispanic. New Jersey: Bergen County ...... Hispanic. Bergen County ...... Asian (Korean). Camden County ...... Hispanic. Cumberland County ...... Hispanic. Essex County ...... Hispanic. Hudson County ...... Hispanic. Middlesex County ...... Hispanic. Passaic County ...... Hispanic. Union County ...... Hispanic. New Mexico: Bernalillo County ...... American Indian (Navajo). Bernalillo County ...... American Indian (Pueblo). Bernalillo County ...... Hispanic. Catron County ...... American Indian (Pueblo). Chaves County ...... Hispanic. Cibola County ...... American Indian (Navajo). Cibola County ...... American Indian (Pueblo). Don˜a Ana County ...... Hispanic. Eddy County ...... Hispanic. Grant County ...... Hispanic. Guadalupe County ...... Hispanic. Harding County ...... Hispanic. Hidalgo County ...... Hispanic. Lea County ...... Hispanic. Luna County ...... Hispanic. McKinley County ...... American Indian (Navajo). McKinley County ...... American Indian (Pueblo). Mora County ...... Hispanic. Rio Arriba County ...... American Indian (Navajo). Rio Arriba County ...... Hispanic. San Juan County ...... American Indian (Navajo). San Miguel County ...... Hispanic. Sandoval County ...... American Indian (Navajo). Sandoval County ...... American Indian (Pueblo). Santa Fe County ...... American Indian (Pueblo). Socorro County ...... American Indian (Navajo). Socorro County ...... American Indian (Pueblo). Socorro County ...... Hispanic. Taos County ...... Hispanic. Valencia County ...... American Indian (Pueblo). Valencia County ...... Hispanic. New York: Bronx County ...... Hispanic. Kings County ...... Asian (Chinese). Kings County ...... Hispanic. Nassau County ...... Hispanic. New York County ...... Asian (Chinese). New York County ...... Hispanic. Queens County ...... Asian (Asian Indian). Queens County ...... Asian (Chinese). Queens County ...... Hispanic. Queens County ...... Asian (Korean). Suffolk County ...... Hispanic. Westchester County ...... Hispanic. Pennsylvania: Berks County ...... Hispanic. Lehigh County ...... Hispanic. Philadelphia County ...... Hispanic. Rhode Island: Central Falls city ...... Hispanic. Pawtucket city ...... Hispanic.
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State and political subdivision Language minority group
Providence city ...... Hispanic. Texas: State Coverage ...... Hispanic. Andrews County ...... Hispanic. Atascosa County ...... Hispanic. Bailey County ...... Hispanic. Bee County ...... Hispanic. Bexar County ...... Hispanic. Brewster County ...... Hispanic. Brooks County ...... Hispanic. Caldwell County ...... Hispanic. Calhoun County ...... Hispanic. Cameron County ...... Hispanic. Castro County ...... Hispanic. Cochran County ...... Hispanic. Concho County ...... Hispanic. Crane County ...... Hispanic. Crockett County ...... Hispanic. Crosby County ...... Hispanic. Culberson County ...... Hispanic. Dallas County ...... Hispanic. Dawson County ...... Hispanic. Deaf Smith County ...... Hispanic. Dimmit County ...... Hispanic. Duval County ...... Hispanic. Ector County ...... Hispanic. Edwards County ...... Hispanic. El Paso County ...... American Indian (Pueblo). El Paso County ...... Hispanic. Floyd County ...... Hispanic. Fort Bend County ...... Hispanic. Frio County ...... Hispanic. Gaines County ...... Hispanic. Garza County ...... Hispanic. Glasscock County ...... Hispanic. Gonzales County ...... Hispanic. Guadalupe County ...... Hispanic. Hale County ...... Hispanic. Hansford County ...... Hispanic. Harris County ...... Asian (Chinese). Harris County ...... Hispanic. Harris County ...... Asian (Vietnamese). Hidalgo County ...... Hispanic. Hockley County ...... Hispanic. Hudspeth County ...... Hispanic. Jim Hogg County ...... Hispanic. Jim Wells County ...... Hispanic. Karnes County ...... Hispanic. Kenedy County ...... Hispanic. Kinney County ...... Hispanic. Kleberg County ...... Hispanic. La Salle County ...... Hispanic. Lamb County ...... Hispanic. Live Oak County ...... Hispanic. Lynn County ...... Hispanic. Martin County ...... Hispanic. Maverick County ...... American Indian (Kickapoo). Maverick County ...... Hispanic. Medina County ...... Hispanic. Midland County ...... Hispanic. Mitchell County ...... Hispanic. Moore County ...... Hispanic. Nolan County ...... Hispanic. Nueces County ...... Hispanic. Ochiltree County ...... Hispanic. Parmer County ...... Hispanic. Pecos County ...... Hispanic. Presidio County ...... Hispanic. Reagan County ...... Hispanic. Reeves County ...... Hispanic. Refugio County ...... Hispanic. Runnels County ...... Hispanic.
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State and political subdivision Language minority group
San Patricio County ...... Hispanic. San Saba County ...... Hispanic. Schleicher County ...... Hispanic. Scurry County ...... Hispanic. Sherman County ...... Hispanic. Starr County ...... Hispanic. Sutton County ...... Hispanic. Swisher County ...... Hispanic. Tarrant County ...... Hispanic. Terrell County ...... Hispanic. Terry County ...... Hispanic. Titus County ...... Hispanic. Travis County ...... Hispanic. Upton County ...... Hispanic. Uvalde County ...... Hispanic. Val Verde County ...... Hispanic. Ward County ...... Hispanic. Webb County ...... Hispanic. Willacy County ...... Hispanic. Wilson County ...... Hispanic. Winkler County ...... Hispanic. Yoakum County ...... Hispanic. Zapata County ...... Hispanic. Zavala County ...... Hispanic. Utah: Salt Lake County ...... Hispanic. San Juan County ...... American Indian (Navajo). Virginia: Fairfax County ...... Hispanic. Washington: Adams County ...... Hispanic. Franklin County ...... Hispanic. King County ...... Asian (Chinese). King County ...... Asian (Vietnamese). Yakima County ...... Hispanic. Wisconsin: Milwaukee City ...... Hispanic. 1 Clyde Township in Allegan County.
[FR Doc. 2011–26293 Filed 10–12–11; 8:45 am] Agenda written statements at any time before or after the meeting. However, to facilitate BILLING CODE 3510–07–P Public Session distribution of public presentation 1. Welcome and Introductions. materials to the Committee members, DEPARTMENT OF COMMERCE 2. Remarks from the Bureau of the Committee suggests that the Industry and Security Management. materials be forwarded before the Bureau of Industry and Security 3. Industry Presentations. meeting to Ms. Springer. 4. New Business. Sensors and Instrumentation The Assistant Secretary for Technical Advisory Committee; Notice Closed Session Administration, with the concurrence of of Partially Closed Meeting 5. Discussion of matters determined to the General Counsel, formally be exempt from the provisions relating determined on September 27, 2011 The Sensors and Instrumentation to public meetings found in 5 U.S.C. pursuant to Section 10(d) of the Federal Technical Advisory Committee (SITAC) app. 2 §§ 10(a)(1) and 10(a)(3). Advisory Committee Act, as amended (5 will meet on October 25, 2011, 9:30 The open session will be accessible U.S.C. app. 2 § 10(d), that the portion of a.m., in the Herbert C. Hoover Building, via teleconference to 20 participants on this meeting dealing with pre-decisional Room 3884, 14th Street between a first come, first served basis. To join changes to the Commerce Control List Constitution and Pennsylvania the conference, submit inquiries to Ms. and U.S. export control policies shall be Avenues, NW., Washington, DC. The Yvette Springer at exempt from the provisions relating to Committee advises the Office of the [email protected] no later public meetings found in 5 U.S.C. app. Assistant Secretary for Export than October 18, 2011. 2 §§ 10(a)(1) and 10(a)(3). The remaining Administration on technical questions A limited number of seats will be portions of the meeting will be open to that affect the level of export controls available during the public session of the public. applicable to sensors and the meeting. Reservations are not accepted. To the extent that time For more information contact Yvette instrumentation equipment and permits, members of the public may Springer on (202) 482–2813. technology. present oral statements to the Committee. The public may submit
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Dated: October 3, 2011. information will be deemed to be NobleTek (Wooster, OH); Parametric Yvette Springer, nonconfidential. Technology Corporation (Needham, Committee Liaison Officer. An original and five (5) copies, plus MA); PARTsolutions, LLC (Milford, [FR Doc. 2011–26009 Filed 10–12–11; 8:45 am] two (2) copies of the nonconfidential OH); Qwaltec, Inc. (Tempe, AZ); RAF BILLING CODE 3510–JT–P version, should be submitted no later Tabtronics LLC (Deland, FL); than 20 days after the date of this notice Realization Technologies Inc. (San Jose, to: Export Trading Company Affairs, CA); Rhinestahl Corporation (Mason, DEPARTMENT OF COMMERCE International Trade Administration, OH); Rix Industries (Beneccia, CA); U.S. Department of Commerce, Room Sanima-SCI Corporation (San Jose, CA); International Trade Administration 7021–X, Washington, DC 20230. Santair USA Inc. (Atlanta, GA); SCB Information submitted by any person Training Inc. (Santa Fe Springs, CA); [Application No. 92–10A01] is exempt from disclosure under the SIFCO Industries Inc. (Cleveland, OH); Export Trade Certificate of Review Freedom of Information Act (5 U.S.C. Sila Solutions Group (Tukwila, WA); 552). However, nonconfidential versions The SI Organization Inc. (King of ACTION: Notice of Application (92– of the comments will be made available Prussia, PA); Valent Aerostructures, LLC 10A01) to amend the Export Trade to the applicant if necessary for (Kansas City, MO); and Wesco Aircraft Certificate of Review Issued to determining whether or not to issue the Hardware Corporation (Valencia, CA). Aerospace Industries Association of Certificate. Comments should refer to 2. Delete the following companies as America Inc. this application as ‘‘Export Trade Members of WMMA’s Certificate: Certificate of Review, application BreconRidge Corporation; M–7 SUMMARY: The Office of Competition number 92–10A01.’’ Aerospace L.P; McKechnie Aerospace; and Economic Analysis (‘‘OCEA’’) of the The Aerospace Industries Association Microsemi Corporation; Technigraphics, International Trade Administration, of America Inc. (‘‘AIAA’’) original Inc; Triumph Aerostructures—Vought Department of Commerce, has received Certificate was issued on September 8, Aircraft Division. an application to amend an Export 1992 (57 FR 41920, September 14, 3. Change in name or address for the Trade Certificate of Review 1992). A summary of the current following Members: Timken Aerospace (‘‘Certificate’’). This notice summarizes application for an amendment follows. Transmissions LLC (Manchester, CT) the proposed amendment and requests has changed its name to Timken comments relevant to whether the Summary of the Application Aerospace Transmissions LLC; and amended Certificate should be issued. Applicant: Aerospace Industries Meggitt Vibro-Meter, Inc. has moved FOR FURTHER INFORMATION CONTACT: Association of America Inc. (‘‘AIAA’’), from Manchester, NH to Londonderry, Joseph Flynn, Director, Office of 1000 Wilson Boulevard, Suite 1700, NH. Competition and Economic Analysis, Arlington, VA 22209. Dated: October 6, 2011. International Trade Administration, Contact: Matthew F. Hall, Attorney, Joseph E. Flynn, (202) 482–5131 (this is not a toll-free Telephone: (206)862–9700. Application No.: 92–10A01. Director, Office of Competition and Economic number) or e-mail at [email protected]. Date Deemed Submitted: September Analysis. SUPPLEMENTARY INFORMATION: Title III of 27, 2011. [FR Doc. 2011–26502 Filed 10–12–11; 8:45 am] the Export Trading Company Act of Proposed Amendment: AIAA seeks to BILLING CODE 3510–DR–P 1982 (15 U.S.C. 4001–21) authorizes the amend its Certificate to: Secretary of Commerce to issue Export 1. Add the following companies as DEPARTMENT OF COMMERCE Trade Certificates of Review. An Export new Members of the Certificate within Trade Certificate of Review protects the the meaning of section 325.2(l) of the International Trade Administration holder and the members identified in Regulations (15 CFR 325.2(l)): Aero- the Certificate from State and Federal Mark, LLC (Ontario, CA); Aero [Application No. 10–1A001] government antitrust actions and from Vironment, Inc. (Monrovia, CA); AGC Export Trade Certificate Of Review private treble damage antitrust actions Aerospace & Defense (Oklahoma City, for the export conduct specified in the OK); AlliedBarton Security Services, ACTION: Notice of issuance of an Export Certificate and carried out in LLC (Conshohocken, PA); Castle Metals Trade Certificate of Review to Alaska compliance with its terms and Aerospace (Oakbrook, IL); CERTON Longline Cod Commission, Application conditions. Section 302(b)(1) of the Software, Inc. (Melbourne, FL); CIRCOR no. 10–1A001. Export Trading Company Act of 1982 International, Inc. (Burlington, MA); and 15 CFR 325.6(a) require the Colt Defense, LLC (West Hartford, CT); SUMMARY: The U.S. Department of Secretary to publish a notice in the Comtech Consulting Inc. (Ashburn, VA); Commerce issued an amended Export Federal Register identifying the Crown Consulting, Inc. (Arlington, VA); Trade Certificate of Review Alaska applicant and summarizing its proposed Cubic Defense Applications, Inc. (San Longline Cod Commission (‘‘ALCC’’) on export conduct. Diego, CA); DitigalGlobe, Inc. September 21, 2011. This is the first (Longmont, CO); Galactic Ventures, LLC amendment to the Certificate. The Request for Public Comments (Las Cruces, NM); Gentex Corporation Alaska Longline Cod Commission’s Interested parties may submit written (Zeeland, MI); HCL America Inc. (‘‘ALCC’’) original Certificate was issued comments relevant to the determination (Sunnyvale, CA); Hi-Shear Technology on May 13, 2010 (75 FR 29514, May 26, whether an amended Certificate should Corporation (Torrance, CA); Hydra 2010). be issued. If the comments include any Electric Company (Burbank, CA); IEC FOR FURTHER INFORMATION CONTACT: privileged or confidential business Electronics Corporation (Newark, NJ); Joseph E. Flynn, Director, Office of information, it must be clearly marked Infotech Enterprises America Inc. (East Competition and Economic Analysis, and a nonconfidential version of the Hartford, CT); Kemet Electronics International Trade Administration, by comments (identified as such) should be Corporations (Simpsonville, SC); telephone at (202) 482–5131 (this is not included. Any comments not marked as Metron Aviation (Dulles, VA); O’Neil & a toll-free number) or e-mail at privileged or confidential business Associates Inc. (Miamisburg, OH); [email protected].
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SUPPLEMENTARY INFORMATION: Title III of Atmospheric Administration (NOAA), DEPARTMENT OF COMMERCE the Export Trading Company Act of Commerce. 1982 (15 U.S.C. Sections 4001–21) National Oceanic and Atmospheric ACTION: authorizes the Secretary of Commerce to Notice; public meeting. Administration issue Export Trade Certificates of RIN 0648–XA597 Review. The regulations implementing SUMMARY: The New England Fishery Title III are found at 15 CFR part 325 Management Council (Council) is Marine Mammals; File No. 16443 (2010). The U.S. Department of scheduling a public meeting of its Joint Commerce, International Trade Whiting Oversight and Advisory Panel AGENCY: National Marine Fisheries Administration, Office of Competition in November, 2011 to consider actions Service (NMFS), National Oceanic and and Economic Analysis (‘‘OCEA’’) is affecting New England fisheries in the Atmospheric Administration (NOAA), issuing this notice pursuant to 15 CFR exclusive economic zone (EEZ). Commerce. 325.6(b), which requires the Secretary of Recommendations from this group will ACTION: Notice; issuance of permit. Commerce to publish a summary of the be brought to the full Council for formal SUMMARY: Notice is hereby given that a issuance in the Federal Register. Under consideration and action, if appropriate. Section 305(a) of the Export Trading permit has been issued to David Honig, DATES: Company Act (15 U.S.C. 4012(b)(1)) and The meeting will be held on Nicholas School of the Environment, 15 CFR 325.11(a), any person aggrieved Thursday November 3, 2011 at 10 a.m. Duke University Marine Laboratory, 135 Marine Lab Road, Beaufort, NC 28516 to by the Secretary’s determination may, ADDRESSES: The meeting will be held at within 30 days of the date of this notice, collect, receive, import, export, possess, the Hotel Providence, 139 Mathewson and conduct analyses on marine bring an action in any appropriate Street, Providence, RI 02903: district court of the United States to set mammal specimens for scientific Telephone: (401) 861–8000; fax: (401) research. aside the determination on the ground 861–8002. that the determination is erroneous. ADDRESSES: The permit and related Council address: New England documents are available for review Description of Certified Conduct Fishery Management Council, 50 Water upon written request or by appointment ALCC’s Export Trade Certificate of Street, Mill 2, Newburyport, MA 01950. in the following offices: Review has been amended to: FOR FURTHER INFORMATION CONTACT: Paul Permits, Conservation and Education 1. Add the following company as new J. Howard, Executive Director, New Division, Office of Protected Resources, Member of the Certificate within the England Fishery Management Council; NMFS, 1315 East-West Highway, Room meaning of section 325.2(l) of the telephone: (978) 465–0492. 13705, Silver Spring, MD 20910; phone Regulations (15 CFR 325.2(l)): Siu (301)427–8401; fax (301)713–0376; and Alaska Corporation (Anchorage, AK). SUPPLEMENTARY INFORMATION: The Southeast Region, NMFS, 263 13th 2. Delete the following companies as Advisory Panel and Oversight Avenue South, Saint Petersburg, FL Members of WMMA’s Certificate: Committee will review an initial a Draft 33701; phone (727)824–5312; fax Glacier Bay Fisheries LLC (Seattle, WA); Amendment 19 document and possibly (727)824–5309. and Glacier Fish Company LLC (Seattle, recommend preferred or modified FOR FURTHER INFORMATION CONTACT: WA). alternatives. The recommendations will Laura Morse or Jennifer Skidmore, (301) The effective date of the amended be forwarded to the Council at the 427–8401. certificate is June 23, 2011, the date on November 2011 Council meeting. SUPPLEMENTARY INFORMATION: On July which ALCC’s application to amend Amendment 19 includes alternatives for 28, 2011 notice was published in the was deemed submitted. A copy of the annual catch limits, accountability Federal Register (76 FR 45232) that a amended certificate will be kept in the measures, a specifications process, total request for a permit to collect and International Trade Administration’s allowable landings (TAL) allocations, import specimens for scientific research Freedom of Information Records incidental possession limits when had been submitted by the above-named Inspection Facility, Room 4001, U.S. landings reach a high fraction of the applicant. The requested permit has Department of Commerce, 14th Street TAL, and red hake possession limits. been issued under the authority of the and Constitution Avenue, NW., Marine Mammal Protection Act of 1972, Washington, DC 20230. Special Accommodations as amended (16 U.S.C. 1361 et seq.), the Dated: October 6, 2011. regulations governing the taking and This meeting is physically accessible importing of marine mammals (50 CFR Joseph E. Flynn, to people with disabilities. Requests for part 216), the Endangered Species Act of Office Director, Office of Competition and sign language interpretation or other Economic Analysis. 1973, as amended (ESA; 16 U.S.C. 1531 auxiliary aids should be directed to Paul et seq.), and the regulations governing [FR Doc. 2011–26490 Filed 10–12–11; 8:45 am] J. Howard, Executive Director, at (978) BILLING CODE 3510–DR–P the taking, importing, and exporting of 465–0492, at least 5 days prior to the endangered and threatened species (50 meeting date. CFR parts 222–226). DEPARTMENT OF COMMERCE Authority: 16 U.S.C. 1801 et seq. The permit authorizes collection, import, export, possession, and analyses Dated: October 7, 2011. National Oceanic and Atmospheric of bones of sperm (Physeter Administration Tracey L. Thompson, macrocephalus) and minke Acting Director, Office of Sustainable (Balaenoptera acutorostrata) whales RIN 0648–XA760 Fisheries, National Marine Fisheries Service. which originated from Sweden and New England Fishery Management [FR Doc. 2011–26460 Filed 10–12–11; 8:45 am] Chile. Collection will involve retrieval Council; Public Meeting BILLING CODE 3510–22–P of a lander on which the whale bones have been placed on the bottom of the AGENCY: National Marine Fisheries Weddell Sea, Antarctica by foreign Service (NMFS), National Oceanic and researchers and under other
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authorizations. Bones would be meeting in person may register on the • Consider the level at which there is imported into the U.S. for analyses. No day of the meeting. This meeting will a reasonable certainty of no harm to live animal takes are authorized and no also be available live via webcast at: children, pregnant women, or other incidental harassment of animals would http://www.cpsc.gov/Webcast. susceptible individuals and their occur. The permit is valid for five years Registration is not necessary to view the offspring, reviewing the best available from the date of issuance. webcast. There will not be any science, and using sufficient safety In compliance with the National opportunity for public participation at factors to account for uncertainties Environmental Policy Act of 1969 (42 this meeting. regarding exposure and susceptibility of U.S.C. 4321 et seq.), a final FOR FURTHER INFORMATION CONTACT: children, pregnant women, and other determination has been made that the Michael Babich, Directorate for Health potentially susceptible individuals; and activity proposed is categorically Sciences, Consumer Product Safety • Consider possible similar health excluded from the requirement to Commission, Bethesda, MD 20814; effects of phthalate alternatives used in prepare an environmental assessment or telephone (301) 504–7253; e-mail children’s toys and child care articles. environmental impact statement. [email protected]. The CPSIA contemplates completion As required by the ESA, issuance of of the CHAP’s examination within 18 SUPPLEMENTARY INFORMATION: Section this permit was based on a finding that months of the panel’s appointment, 108 of the CPSIA permanently prohibits such permit: (1) Was applied for in good followed by an additional 6 months to the sale of any ‘‘children’s toy or child faith; (2) will not operate to the complete their final report. The CHAP’s care article’’ containing more than 0.1 disadvantage of such endangered final report is expected in April 2012. percent of each of three specified species; and (3) is consistent with the The CHAP must make phthalates: di-(2-ethylhexyl) phthalate purposes and policies set forth in recommendations to the Commission (DEHP), dibutyl phthalate (DBP), and section 2 of the ESA. about which phthalates, or benzyl butyl phthalate (BBP). Section Dated: October 7, 2011. combinations of phthalates (in addition 108 also prohibits on an interim basis, to those identified in section 108 of the P. Michael Payne, the sale of any ‘‘children’s toy that can CPSIA), or phthalate alternatives that Chief, Permits, Conservation and Education be placed in a child’s mouth’’ or ‘‘child the panel determines should be Division, Office of Protected Resources, care article’’ containing more than 0.1 National Marine Fisheries Service. prohibited from use in children’s toys or percent of each of three additional child care articles or otherwise [FR Doc. 2011–26497 Filed 10–12–11; 8:45 am] phthalates: diisononyl phthalate (DINP), restricted. The Commission selected the BILLING CODE 3510–22–P diisodecyl phthalate (DIDP), and di-n- CHAP members from scientists octyl phthalate (DNOP). nominated by the National Academy of Moreover, section 108 of the CPSIA Sciences. See 15 U.S.C. 2077, 2030(b). CONSUMER PRODUCT SAFETY requires the Commission to convene a The CHAP met previously in April, COMMISSION CHAP ‘‘to study the effects on children’s July, and December 2010, and in March health of all phthalates and phthalate Notice of Meeting of Chronic Hazard and July 2011. The CHAP heard alternatives as used in children’s toys testimony from interested parties at the Advisory Panel on Phthalates and and child care articles.’’ The CPSIA Phthalate Substitutes July meeting. The November meeting requires the CHAP to complete an will include invited speakers on examination of the full range of AGENCY: Consumer Product Safety Wednesday morning, followed by a phthalates that are used in products for Commission. discussion of the CHAP’s progress on its children and: report. There will not be any ACTION: Notice of meeting. • Examine all of the potential health opportunity for public comment at the effects (including endocrine disrupting SUMMARY: The U.S. Consumer Product November 2011 meeting. Safety Commission (‘‘CPSC’’ or effects) of the full range of phthalates; • Consider the potential health effects Dated: October 7, 2011. ‘‘Commission’’) announces the sixth of each of these phthalates, both in Todd A. Stevenson, meeting of the Chronic Hazard Advisory isolation, and in combination with other Panel (CHAP) on phthalates and Secretary. phthalates; phthalate substitutes. The Commission [FR Doc. 2011–26450 Filed 10–12–11; 8:45 am] • Examine the likely levels of appointed this CHAP to study the BILLING CODE 6355–01–P children’s, pregnant women’s, and effects on children’s health of all others’ exposure to phthalates, based phthalates and phthalate alternatives as upon a reasonable estimation of normal used in children’s toys and child care CONSUMER PRODUCT SAFETY and foreseeable use and abuse of such articles, pursuant to section 108 of the COMMISSION products; Consumer Product Safety Improvement • Consider the cumulative effect of Sunshine Act Meeting Notice Act of 2008 (CPSIA) (Pub. L. 110–314). total exposure to phthalates, from DATES: The meeting will be held on children’s products and from other TIME AND DATE: Wednesday, October 19, Wednesday, November 2 through sources, such as personal care products; 2011, 9 a.m.—12 p.m. Friday, November 4, 2011. The meeting • Review all relevant data, including PLACE: Room 420, Bethesda Towers, will begin at approximately 9 a.m. each the most recent, best available, peer- 4330 East West Highway, Bethesda, day. It will end at approximately 5 p.m. reviewed, scientific studies of these Maryland. on Wednesday and Thursday, and at phthalates and phthalate alternatives STATUS: Commission Meeting—Open to approximately 2 p.m. on Friday. that employ objective data-collection the Public. ADDRESSES: The meeting will be held in practices or employ other objective the fourth floor hearing room at the methods; Matters to be Considered Commission’s offices at 4330 East West • Consider the health effects of Decisional Matters: Highway, Bethesda, MD. phthalates, not only from ingestion, but (1) Testing & Certification/ Registration and Webcast: Members of also as a result of dermal, hand-to- Components Parts Final Rules; the public who wish to attend the mouth, or other exposure; (2) Representative—Notice of
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Proposed Rulemaking; and Changes to Open Meeting: Meeting computerized and paper-and-pencil (3) Federal Register Notice on H.R. Deferred until Wednesday, October 19, tests for military enlistment. 2715 Questions. 2011, 9 a.m.–12 p.m. Agenda: The agenda includes an A live Web cast of the Meeting can be Announced Time and Date of Closed overview of current enlistment test viewed at http://www.cpsc.gov/webcast. Meeting: 2–3 p.m., Wednesday development timelines and planned For a recorded message containing the September 21, 2011. research for the next 3 years. latest agenda information, call (301) Closed Meeting: Time Change: 10 Public’s Accessibility to the Meeting: 504–7948. a.m.–11 a.m. Pursuant to 5 U.S.C. 552b and 41 CFR CONTACT PERSON FOR MORE INFORMATION: For a recorded message containing the 102–3.140 through 102–3.165, and the Todd A. Stevenson, Office of the latest agenda information, call (301) availability of space, this meeting is Secretary, U.S. Consumer Product 504–7948. open to the public. Safety Commission, 4330 East West CONTACT PERSON FOR ADDITIONAL Persons desiring to make oral Highway, Bethesda, MD 20814, (301) INFORMATION: Todd A. Stevenson, Office presentations or submit written 504–7923. of the Secretary, 4330 East West statements for consideration at the Dated: October 12, 2011. Highway, Bethesda, MD 20814 (301) Committee meeting must contact Dr. Todd A. Stevenson, 504–7923. Jane M. Arabian at the address or telephone number in FOR FURTHER Secretariat. Dated: October 11, 2011. INFORMATION CONTACT no later than [FR Doc. 2011–26606 Filed 10–11–11; 4:15 pm] Todd A. Stevenson, November 1, 2011. BILLING CODE 6355–01–P Secretary. Dated: October 7, 2011. [FR Doc. 2011–26605 Filed 10–11–11; 4:15 pm] Aaron Siegel, BILLING CODE 6355–01–P CONSUMER PRODUCT SAFETY Alternate OSD Federal Register Liaison COMMISSION Officer, Department of Defense. DEPARTMENT OF DEFENSE [FR Doc. 2011–26443 Filed 10–12–11; 8:45 am] Sunshine Act Meeting Notice BILLING CODE 5001–06–P DATES: Time And Date: Wednesday, Office of the Secretary October 19, 2011; 2 p.m.—3 p.m. DEPARTMENT OF DEFENSE PLACE: Hearing Room 420, Bethesda Defense Advisory Committee on Towers, 4330 East West Highway, Military Personnel Testing; Notice of Department of the Army Bethesda, Maryland. Meeting [Docket ID: USA–2011–0025] STATUS: Closed to the Public. AGENCY: Under Secretary of Defense for Matter To Be Considered Personnel and Readiness, Department of Privacy Act of 1974; System of Defense (DoD). Records Compliance Status Report ACTION: Meeting notice. AGENCY: Department of the Army, The Commission staff will brief the Department of Defense (DoD). Commission on the status of compliance SUMMARY: Under the provisions of the matters. Federal Advisory Committee Act of ACTION: Notice to delete a system of For a recorded message containing the 1972 (5 U.S.C., Appendix, as amended), records. latest agenda information, call (301) the Government in the Sunshine Act of SUMMARY: The Department of the Army 504–7948. 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150, the Department of is deleting a system of records notice CONTACT PERSON FOR MORE INFORMATION: from its existing inventory of record Todd A. Stevenson, Office of the Defense announces that the following Federal advisory committee meeting of systems subject to the Privacy Act of Secretary, U.S. Consumer Product 1974, (5 U.S.C. 552a), as amended. Safety Commission, 4330 East West the Defense Advisory Committee on DATES: Highway, Bethesda, MD 20814, (301) Military Personnel Testing will take This proposed action will be 504–7923. place. effective without further notice on November 14, 2011 unless comments DATES: Dated: October 11, 2011. Thursday, November 3, 2011, are received which result in a contrary Todd A Stevenson, from 8:30 a.m. to 4 p.m. and Friday, determination. Secretariat. November 4, 2011, from 8:30 a.m. to 12 p.m. ADDRESSES: You may submit comments, [FR Doc. 2011–26607 Filed 10–11–11; 4:15 pm] identified by docket number and title, ADDRESSES: The meeting will be held at BILLING CODE 6355–01–P by any of the following methods: the Hotel Albuquerque at Old Town, * Federal Rulemaking Portal: http:// 800 Rio Grande Boulevard NW., www.regulations.gov. Follow the CONSUMER PRODUCT SAFETY Albuquerque, NM 87104. instructions for submitting comments. COMMISSION FOR FURTHER INFORMATION CONTACT: * Mail: Federal Docket Management Committee’s Designated Federal Officer System Office, 4800 Mark Center Drive, Sunshine Act Meetings or Point of Contact: Dr. Jane M. Arabian, East Tower, 2nd floor, Suite 02G09, AGENCY: U.S. Consumer Product Safety Assistant Director, Accession Policy, Alexandria, VA 22350–3100. Commission. Office of the Under Secretary of Defense Instructions: All submissions received Federal Register Citation of Previous (Personnel and Readiness), Room must include the agency name and Announcement: Vol. 76, No. 195, 3D1066, The Pentagon, Washington, DC docket number for this Federal Register Friday, October 7, 2011, pages 62393– 20301–4000, telephone (703) 697–9271. document. The general policy for 62394. SUPPLEMENTARY INFORMATION: comments and other submissions from Announced Time and Date of Open Purpose of the Meeting: The purpose members of the public is to make these Meeting: 9 a.m.–12 p.m., Wednesday of the meeting is to review planned submissions available for public October 12, 2011. changes and progress in developing viewing on the Internet at http://
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www.regulations.gov as they are (NCFMEA). For each country reviewed, What are the functions of the NCFMEA? received without change, including any the staff presentations, country The NCFMEA was established by the personal identifiers or contact representative presentations, and some Secretary of Education under Section information. Committee deliberations are open to the 102 of the Higher Education Act of FOR FURTHER INFORMATION CONTACT: Mr. public, and the public is invited to 1965, as amended. The NCFMEA’s Leroy Jones, Department of the Army, attend those portions. responsibilities are to: Privacy Office, U.S. Army Records When and where will the meeting take • Upon request of a foreign country, Management and Declassification place? evaluate the standards of accreditation Agency, 7701 Telegraph Road, Casey applied to medical schools in that Building, Suite 144, Alexandria, VA The public meeting will be held on country; and, 22325–3905, or by phone at (703) 428– Friday, October 21, 2011, from 8 a.m. • Determine the comparability of 6185. until approximately 5 p.m., U.S. those standards to standards for Department of Education, Potomac SUPPLEMENTARY INFORMATION: The accreditation applied to United States Center Plaza Building, 550 Twelfth Department of the Army systems of medical schools. Comparability of the Street, SW., Washington, DC 20202. Due records notices subject to the Privacy applicable accreditation standards is an to security restrictions, all attendees Act of 1974, (5 U.S.C. 552a), as eligibility requirement for foreign must pre-register. Please e-mail your amended, have been published in the medical schools to participate in the registration request to Federal Register and are available from Federal Family Education Loan [email protected] by October the address in FOR FURTHER INFORMATION Program, 20 U.S.C. 1071 et seq. 14, 2011, and include ‘‘NCFMEA CONTACT. Meeting Registration’’ in the subject What items will be on the agenda for The Department of the Army proposes line. Your request should include your discussion at the meeting? to delete one system of records notice name, title, affiliation, mailing address, from its inventory of record systems The Committee will review the e-mail address, telephone and facsimile subject to the Privacy Act of 1974 (5 standards of accreditation applied to numbers, and Web site (if any) of the U.S.C. 552a), as amended. The proposed medical schools by several foreign person/group requesting registration. deletion is not within the purview of countries to determine whether those Also, since all audience members will subsection (r) of the Privacy Act of 1974, standards are comparable to the need to be escorted within the building, (5 U.S.C. 552a), as amended, which standards of accreditation applied to please bring an identification card with requires the submission of a new or medical schools in the United States. your picture on it to the NCFMEA table altered system report. Discussions of the standards of that will be set up in the building’s accreditation will be held in sessions Dated: October 6, 2011. lobby. If you have any questions about open to the public. Discussions Aaron Siegel, the meeting registration process, please resulting in specific determinations of Alternate OSD Federal Register Liaison e-mail the contact person listed below comparability are closed to the public in Officer, Department of Defense. prior to October 14, 2011. order that each country may be properly Deletion: What assistance will be provided to notified of the decision. The countries individuals with disabilities? scheduled to be discussed at the A0350–20 TRADOC, Standardized Student meeting include: Czech Republic, Records System (October 1, 2008, 73 FR The meeting site is accessible to 57073) Dominica, Dominican Republic, individuals with disabilities. If you will Hungary, The Netherlands, Mexico, REASON: need an auxiliary aid or service to Philippines, Poland, and St. Maarten. The Army Standardized Student participate in the meeting (e.g., The meeting agenda, as well as the staff Records System is now covered under a interpreting service, assistive listening analyses pertaining to this meeting, will new system identifier, A0350–20a device, or materials in an alternate be posted on the Department of TRADOC, October 5, 2011, 76 FR format), notify the contact person listed Education’s Web site at the following 61680–61682, due to major changes in in this notice by October 14, 2011. address: http://www.ed.gov/about/ fifteen categories in the SORN; therefore Although we will attempt to meet a bdscomm/list/ncfmea.html. the notice can be deleted. request received after that date, we may not be able to make available the How may I obtain electronic access to [FR Doc. 2011–26396 Filed 10–12–11; 8:45 am] requested auxiliary aid or service this document? BILLING CODE 5001–06–P because of insufficient time to arrange The official version of this document it. is the document published in the Federal Register. Free Internet access to DEPARTMENT OF EDUCATION Who is the contact person for the meeting? the official edition of the Federal Register and the Code of Federal National Committee on Foreign Please contact Melissa Lewis, the Regulations is available via the Federal Medical Education and Accreditation Executive Director for the NCFMEA, if Digital System at: http://www.gpo.gov/ Meeting you have questions about the meeting. fdsys. At this site you can view this AGENCY: National Committee on Foreign You may contact her at the U.S. document, as well as all other Medical Education and Accreditation, Department of Education, 1990 K St. documents of this Department Office of Postsecondary Education, U.S. NW., Room 8060, Washington, DC published in the Federal Register, in Department of Education 20006–8129, telephone: 202–219–7009, text or Adobe Portable Document fax: 202–219–7005, e-mail: Format (PDF). To use PDF, you must What is the purpose of this notice? [email protected]. Individuals who have Adobe Acrobat Reader, which is The purpose of this notice is to use a telecommunications device for the available free at the site. announce the upcoming meeting of the deaf (TDD) may call the Federal You may also access documents of the National Committee on Foreign Medical Information Relay Service at 1–800– Department published in the Federal Education and Accreditation 877–8339. Register by using the article search
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feature at: http:// recommendations and further steps that DEPARTMENT OF ENERGY www.federalregister.gov. Specifically, can be taken to improve the process. through the advanced search feature at Environmental Management Site- this site, you can limit your search to Tentative Agenda Specific Advisory Board, Hanford documents published by the The meeting will start at 10 a.m. on AGENCY: Department of Energy. Department. October 31, 2011. The tentative meeting ACTION: Notice of open meeting. Eduardo M. Ochoa, agenda includes discussion regarding Assistant Secretary for Postsecondary implementation of recommendations SUMMARY: This notice announces a Education. and next steps. The meeting will meeting of the Environmental [FR Doc. 2011–26504 Filed 10–12–11; 8:45 am] conclude at 3 p.m. The second meeting, Management Site-Specific Advisory BILLING CODE 4000–01–P November 1, 2011, will begin at 10 a.m. Board (EM SSAB), Hanford. The Federal The tentative meeting agenda includes Advisory Committee Act (Pub. L. 92– continued discussion regarding 463, 86 Stat. 770) requires that public DEPARTMENT OF ENERGY implementation of recommendations notice of this meeting be announced in and next steps. The meeting will the Federal Register. Secretary of Energy Advisory Board conclude at 12 p.m. DATES: Thursday, November 3, 2011; Natural Gas Subcommittee 9 a.m.–5 p.m. Public Participation Friday, November 4, 2011; 8:30 a.m.– AGENCY: Department of Energy. 4 p.m. ACTION: Notice of open meeting. These meetings are open to the public. Individuals who would like to ADDRESSES: Red Lion Hotel, North 1101 SUMMARY: This notice announces an attend must RSVP by e-mail to: Columbia Center Boulevard, open meeting of the Secretary of Energy [email protected], no later than 5:00 Kennewick, WA 99336. Advisory Board (SEAB) Natural Gas p.m. on Thursday, October 27, 2011, for FOR FURTHER INFORMATION CONTACT: Subcommittee. SEAB was reestablished both meetings. Please provide your Paula Call, Federal Coordinator, pursuant to the Federal Advisory name, organization, citizenship, and Department of Energy Richland Committee Act (Pub. L. 92–463, 86 Stat. contact information. Space is limited. Operations Office, 825 Jadwin Avenue, 770) (the Act). This notice is provided Anyone attending the meeting will be P.O. Box 550, A7–75, Richland, WA in accordance with the Act. required to present government issued 99352; Phone: (509) 376–2048; or E- DATES: Monday, October 31, 2011; 10 identification. Individuals and mail: [email protected]. a.m.–12 p.m., 1 p.m.–3 p.m., Tuesday, representatives of organizations who SUPPLEMENTARY INFORMATION: Purpose of November 1, 2011; 10 a.m.–12 p.m. would like to offer comments and the Board: The purpose of the Board is ADDRESSES: Department of Energy, 1000 suggestions may do so at the end of the to make recommendations to DOE–EM Independence Avenue, SW., meeting on Monday, October 31, 2011 and site management in the areas of Washington, DC 20585. and Tuesday, November 1, 2011. environmental restoration, waste FOR FURTHER INFORMATION CONTACT: Approximately 30 minutes will be management, and related activities. Renee Stone, Deputy Designated Federal reserved each day for public comments. Officer, U.S. Department of Energy, Tentative Agenda 1000 Independence Avenue, SW., Time allotted per speaker will depend • Potential Board Advice: Washington, DC 20585; on the number of individuals who wish Æ Proposed Changes to the Tri-Party [email protected] or to speak but will not, in any Agency Community Relations Plan www.shalegas.energy.gov. circumstance, exceed five minutes. The (Hanford Public Involvement Plan). Designated Federal Officer is Æ SUPPLEMENTARY INFORMATION: 2011 Hanford Lifecycle Scope, empowered to conduct the meeting in a Schedule, and Cost Report. Background fashion that will facilitate the orderly Æ Draft 100–K Proposed Plan. The Subcommittee was established to conduct of business. Those wishing to • Agency Updates (Office of River provide recommendations to the SEAB speak should register to do so beginning Protection and Richland Operations on how to improve the safety and at 9:45 a.m. on October 31, 2011 and Office; Washington State Department of environmental performance of natural 9:45 a.m. on November 1, 2011. Ecology; U.S. Environmental Protection gas hydraulic fracturing from shale Agency). Those not able to attend the meeting • formations thereby harnessing a vital or have insufficient time to address the Committee Updates, including: domestic energy resource while committee are invited to send a written Tank Waste Committee; River and Plateau Committee; Health, Safety and ensuring the safety of citizen’s drinking statement to Renee Stone, U.S. Environmental Management Committee; water and the health of the Department of Energy, 1000 Public Involvement and environment. President Obama directed Independence Avenue, SW., Secretary Chu to convene this group as Communications Committee; and Washington, DC 20585, or by e-mail to: Budgets and Contracts Committee. part of the President’s ‘‘Blueprint for a [email protected], or post on the Secure Energy Future’’—a • DOE-led Discussion: Fiscal Year subcommittee Web site at: http:// comprehensive plan to reduce 2012 board budget, conflict of interest www.shalegas.energy.gov. America’s oil dependence, save guidelines, and 2012 membership consumers money, and make our Issued in Washington, DC, on October 7, reappointment process. country the leader in clean energy 2011. • DOE Presentation: Tank Vapor industries. LaTanya Butler, Monitoring. • Deputy Committee Management Officer. Pacific Northwest National Purpose of the Meeting Laboratory Presentation: Advanced The purpose of this meeting is to [FR Doc. 2011–26464 Filed 10–12–11; 8:45 am] Simulation Capability for EM/ allow subcommittee members to discuss BILLING CODE 6450–01–P Groundwater Modeling. progress on implementation of • Board Business:
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Æ Update to the Hanford Advisory Act (Pub. L. 92–463, 86 Stat. 770) copying at http://biomassboard.gov/ Board Process Manuel regarding Issue requires that agencies publish these committee/meetings.html. Manager/Advice Development Process. notices in the Federal Register to allow Æ Issued at Washington, DC on October 7, Finalize FY 2012 work plan and for public participation. 2011. calendar. DATES AND TIMES: November 8, 2011; LaTanya R. Butler, Æ Process Manual Revisions 8:30 a.m.–5:30 p.m. Acting Deputy Committee Management Discussion. November 9, 2011; 8:30 a.m.–12:30 Officer. Public Participation: The meeting is p.m. open to the public. The EM SSAB, [FR Doc. 2011–26476 Filed 10–12–11; 8:45 am] Hanford, welcomes the attendance of ADDRESSES: Melrose Hotel—DC, 2430 BILLING CODE 6450–01–P the public at its advisory committee Pennsylvania Ave., NW., Washington, DC 20037. meetings and will make every effort to DEPARTMENT OF ENERGY accommodate persons with physical FOR FURTHER INFORMATION CONTACT: disabilities or special needs. If you Elliott Levine, Designated Federal Federal Energy Regulatory require special accommodations due to Officer, Office of Energy Efficiency and Commission a disability, please contact Paula Call at Renewable Energy, U.S. Department of least seven days in advance of the Energy, 1000 Independence Avenue, [Docket No. ER12–21–000] meeting at the phone number listed SW., Washington, DC 20585; (202) 586– above. Written statements may be filed 1476; E-mail: [email protected] Agua Caliente Solar, LLC; with the Board either before or after the or Roy Tiley at (410) 997–7778 ext. 220; Supplemental Notice That Initial meeting. Individuals who wish to make E-mail: [email protected]. Market-Based Rate Filing Includes oral statements pertaining to agenda Request for Blanket Section 204 SUPPLEMENTARY INFORMATION: Purpose of Authorization items should contact Paula Call at the Meeting: To provide advice and address or telephone number listed guidance that promotes research and This is a supplemental notice in the above. Requests must be received five development leading to the production above-referenced proceeding of Agua days prior to the meeting and reasonable of biobased fuels and biobased products. Caliente Solar, LLC’s application for provision will be made to include the market-based rate authority, with an Tentative Agenda: Agenda Will Include presentation in the agenda. The Deputy accompanying rate tariff, noting that the Following Designated Federal Officer is such application includes a request for empowered to conduct the meeting in a • Update on USDA Biomass R&D blanket authorization, under 18 CFR fashion that will facilitate the orderly Activities; part 34, of future issuances of securities conduct of business. Individuals • Update on DOE Biomass R&D and assumptions of liability. wishing to make public comments will Activities; Any person desiring to intervene or to be provided a maximum of five minutes • Presentation on Current Biomass protest should file with the Federal to present their comments. Solicitation Processes; Energy Regulatory Commission, 888 Minutes: Minutes will be available by • Presentation on the Defense First Street, NE., Washington, DC 20426, writing or calling Paula Call’s office at Production Act Title III Technology for in accordance with Rules 211 and 214 the address or phone number listed Advanced Drop-in Biofuels Production; of the Commission’s Rules of Practice above. Minutes will also be available at • Presentation on the National and Procedure (18 CFR 385.211 and the following Web site: http:// Biofuels Action Plan. 385.214). Anyone filing a motion to www.hanford.gov/page.cfm/hab. Public Participation: In keeping with intervene or protest must serve a copy Issued at Washington, DC on October 7, procedures, members of the public are of that document on the Applicant. 2011. welcome to observe the business of the Notice is hereby given that the LaTanya R. Butler, Biomass Research and Development deadline for filing protests with regard Acting Deputy Committee Management Technical Advisory Committee. To to the applicant’s request for blanket Officer. attend the meeting and/or to make oral authorization, under 18 CFR part 34, of [FR Doc. 2011–26475 Filed 10–12–11; 8:45 am] statements regarding any of the items on future issuances of securities and BILLING CODE 6450–01–P the agenda, you must contact Elliott assumptions of liability, is October 25, Levine at (202) 586–7766; E-mail: 2011. [email protected] or Roy Tiley at The Commission encourages DEPARTMENT OF ENERGY (410) 997–7778 ext. 220; E-mail: electronic submission of protests and [email protected] at least 5 business interventions in lieu of paper, using the Energy Efficiency and Renewable days prior to the meeting. Members of FERC Online links at http:// Energy the public will be heard in the order in www.ferc.gov. To facilitate electronic which they sign up at the beginning of service, persons with Internet access Biomass Research and Development the meeting. Reasonable provision will who will eFile a document and/or be Technical Advisory Committee be made to include the scheduled oral listed as a contact for an intervenor AGENCY: Energy Efficiency and statements on the agenda. The Co-chairs must create and validate an Renewable Energy, Department of of the Committee will make every effort eRegistration account using the Energy. to hear the views of all interested eRegistration link. Select the eFiling ACTION: Notice of open meeting. parties. If you would like to file a link to log on and submit the written statement with the Committee, intervention or protests. SUMMARY: This notice announces an you may do so either before or after the Persons unable to file electronically open meeting of the Biomass Research meeting. The Co-chairs will conduct the should submit an original and 14 copies and Development Technical Advisory meeting to facilitate the orderly conduct of the intervention or protest to the Committee under section 9008(d) of the of business. Federal Energy Regulatory Commission, Food, Conservation, and Energy Act of Minutes: The minutes of the meeting 888 First Street, NE., Washington, DC 2008. The Federal Advisory Committee will be available for public review and 20426.
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The filings in the above-referenced SUMMARY: The U.S. EPA invites associations for healthcare officials. proceeding are accessible in the interested stakeholders to participate in Potentially affected entities may Commission’s eLibrary system by a laboratory-based technical workshop include, but are not limited to those clicking on the appropriate link in the that will focus on the conduct of the persons who are or may be required to above list. They are also available for Association of Official Analytical conduct testing of chemical substances review in the Commission’s Public Chemists (AOAC) Use-dilution method under the Federal Food, Drug, and Reference Room in Washington, DC. (UDM) and the status and Cosmetic Act (FFDCA), or the Federal There is an eSubscription link on the implementation of a new test method, Insecticide, Fungicide, and Rodenticide Web site that enables subscribers to the Organization for Economic Act (FIFRA). receive e-mail notification when a Cooperation and Development (OECD) This listing is not intended to be document is added to a subscribed Quantitative Method for Evaluating exhaustive, but rather provides a guide docket(s). For assistance with any FERC Bactericidal Activity of Microbicides for readers regarding entities likely to be Online service, please e-mail Used on Hard, Non-Porous Surfaces. affected by this action. Other types of [email protected]. or call The workshop is being held to discuss entities not listed in this unit could also (866) 208–3676 (toll free). For TTY, call current and proposed revisions mainly be affected. The North American (202) 502–8659. associated with the Staphyloccocus Industrial Classification System aureus and Pseudomonas aeruginosa (NAICS) codes have been provided to Dated: October 5, 2011. assist you and others in determining Nathaniel J. Davis, Sr., methodologies. The goals of the workshop are to provide a whether this action might apply to Deputy Secretary. comprehensive review and discussion certain entities. If you have any [FR Doc. 2011–26375 Filed 10–12–11; 8:45 am] period on the status of the UDM and questions regarding the applicability of BILLING CODE 6717–01–P OEDC methods integrated with hands- this action to a particular entity, consult on laboratory demonstrations. An the person listed under FOR FURTHER overview of various data sets and INFORMATION CONTACT. DEPARTMENT OF ENERGY collaborative studies will be used to B. How can I get copies of this document Federal Energy Regulatory supplement the discussions which will and other related information? be held at the EPA Environmental Commission EPA has established a docket for this Science Center Microbiology action under docket ID number EPA– [Docket No. EL11–29–000] Laboratory. HQ–OPP–2011–0842. Publicly available Atlantic Path 15, LLC; Notice of DATES: The meeting will be held on docket materials are available either in Initiation of Proceeding and Refund November 15 and 16, 2011 from 8:30 the electronic docket at http:// Effective Date a.m. to 4 p.m. Requests to participate in www.regulations.gov, or, if only the meeting must be received on or available in hard copy, at the Office of On April 19, 2011, the Commission before November 4, 2011. To request Pesticide Programs (OPP) Regulatory issued an order that initiated a accommodation of a disability, please Public Docket in Rm. S–4400, One proceeding in Docket No. EL11–29–000, contact the person listed under FOR Potomac Yard (South Bldg.), 2777 S. pursuant to section 206 of the Federal FURTHER INFORMATON CONTACT, Crystal Dr., Arlington, VA. The hours of Power Act (FPA), 16 U.S.C. 824e (2006), preferably at least 10 days prior to the operation of this Docket Facility are to determine the justness and meeting, to give EPA as much time as from 8:30 a.m. to 4 p.m., Monday reasonableness of Atlantic Path 15, possible to process your request. through Friday, excluding legal LLC’s proposed rate reduction to its ADDRESSES: The meeting will be held at holidays. The Docket Facility telephone transmission revenue requirement. the Environmental Protection Agency’s number is (703) 305–5805. Atlantic Path 15, LLC, 135 FERC Environmental Science Center, 701 II. Background ¶ 61,037 (2011). Mapes Road, Ft. Meade, Maryland The refund effective date in Docket 20755–5350. Requests to participate in The AOAC Use-dilution method No. EL11–29–000, established pursuant the meeting, identified by docket (UDM), is currently accepted by EPA for to section 206(b) of the FPA, will be the identification (ID) number EPA–HQ– regulatory purposes to measure the date of publication of this notice in the OPP–2011–0842, may be submitted to efficacy of liquid hospital disinfectants Federal Register. the person listed under FOR FURTHER against Staphyloccocus aureus, Dated: October 5, 2011. INFORMATION CONTACT. Pseudomonas aeruginosa and Nathaniel J. Davis, Sr., FOR FURTHER INFORMATION CONTACT: Salmonella enterica on hard non-porous Deputy Secretary. Michele Cottrill, Office of Pesticide surfaces. In addition to using the method for registration purposes, the [FR Doc. 2011–26374 Filed 10–12–11; 8:45 am] Programs, Environmental Protection method is currently in use as part of the BILLING CODE 6717–01–P Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone post market Antimicrobials Testing number: (410) 305–2955; fax number: Program. The workshop is being held to discuss current and proposed revisions ENVIRONMENTAL PROTECTION (410) 305–3094; e-mail address: [email protected]. mainly associated with the S. aureus AGENCY and P. aeruginosa methodologies, which [EPA–HQ–OPP–2011–0842; FRL–8891–9] SUPPLEMENTARY INFORMATION: are designed to further optimize and I. General Information standardize the UDM, and to discuss the Environmental Science Center data associated with these revisions. At Microbiology Laboratory; Notice of A. Does this action apply to me? the workshop, the UDM method will be Public Meeting You may be potentially affected by discussed along with the status and AGENCY: Environmental Protection this action if you represent implementation of a new test method, Agency (EPA). antimicrobials product registrants, the OECD Quantitative Method for healthcare facilities who use Evaluating Bactericidal Activity of ACTION: Notice. antimicrobial products, Professional Microbicides Used on Hard, Non-Porous
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Surfaces (OECD method), will be ACTION: Notice. FEDERAL COMMUNICATIONS discussed. The OECD Method recently COMMISSION underwent a multi-laboratory ring trial SUMMARY: Notice is hereby given of the and the EPA is interested in adopting appointment of members to the Notice of Public Information the OECD method for regulatory Performance Review Board of the Equal Collection(s) Being Reviewed by the purposes. The method is based on test Employment Opportunity Commission. Federal Communications Commission guidelines from the (OECD), an for Extension Under Delegated intergovernmental organization FOR FURTHER INFORMATION CONTACT: Lisa Authority, Comments Requested consisting of 30 industrialized countries M. Williams, Chief Human Capital October 4, 2011. in Europe, North America, Asia and the Officer, U.S. Equal Employment Pacific. Through its Environment Opportunity Commission, 131 M Street, SUMMARY: The Federal Communications Program, OECD works to help countries NE., Washington, DC 20507, (202) 663– Commission, as part of its continuing manage the risks of chemicals as 4306. effort to reduce paperwork burden efficiently and effectively as possible. invites the general public and other SUPPLEMENTARY INFORMATION: This is a technical meeting for Federal agencies to take this Publication of the Performance Review individuals with laboratory expertise in opportunity to comment on the conducting the UDM and OECD Board (PRB) membership is required by following information collection(s), as procedures or who plan to conduct 5 U.S.C. 4314(c)(4). The PRB reviews required by the Paperwork Reduction these methods in the future. Participants and evaluates the initial appraisal of a Act (PRA) of 1995, 44 U.S.C. 3501–3520. must be knowledgeable of the safety senior executive’s performance by the Comments are requested concerning: (a) practices and procedures for working in supervisor, and makes Whether the proposed collection of a Biosafety Level II laboratory recommendations to the Chair, EEOC, information is necessary for the proper environment in order to participate in with respect to performance ratings, pay performance of the functions of the the laboratory demonstrations. The level adjustments and performance Commission, including whether the detailed agenda for the workshop is awards. information shall have practical utility; (b) the accuracy of the Commission’s available in the docket. The Agency is The following are the names and titles encouraging participation from a cross- burden estimate; (c) ways to enhance of executives appointed to serve as the quality, utility, and clarity of the section of affected parties including members of the SES PRE. Members will industry, state and federal partners, and information collected; (d) ways to serve a 12-month term, which begins on minimize the burden of the collection of testing laboratories. Due to space October 14, 2011. constraints in the laboratory, attendance information on the respondents, will be limited to 30 total participants, PRB Chair including the use of automated with a maximum of 20 participating in collection techniques or other forms of the laboratory exercises. Ms. Katharine M. Kores, Director, information technology, and (e) ways to Memphis District Office, Equal further reduce the information III. How can I request to participate in Employment Opportunity Commission. collection burden for small business this meeting? concerns with fewer than 25 employees. Members You may submit a request to The FCC may not conduct or sponsor participate in this meeting to the person Mr. Michael Baldonado, Director, San a collection of information unless it displays a currently valid control listed under FOR FURTHER INFORMATION Francisco District Office, Equal number. No person shall be subject to CONTACT. Do not submit any information Employment Opportunity Commission; in your request that is considered CBI. any penalty for failing to comply with Ms. Delner Franklin-Thomas, Requests to participate in the meeting, a collection of information subject to the Director, Birmingham District Office, identified by docket ID number EPA– Paperwork Reduction Act (PRA) that HQ–OPP–2011–0842, must be received Equal Employment Opportunity does not display a currently valid OMB on or before November 4, 2011. Commission; control number. Ms. Peggy R. Mastroianni, Legal DATES: Written Paperwork Reduction List of Subjects Counsel, Equal Employment Act (PRA) comments should be Environmental protection, Opportunity Commission; submitted on or before December 12, Association of Official Analytical Mr. A. Jacy Thurmond, Associate 2011. If you anticipate that you will be Chemists (AOAC), Public health claims, Commissioner for the Office of Civil submitting PRA comments, but find it Use-dilution method. difficult to do so within the period of Rights and Equal Opportunities, Social time allowed by this notice, you should Dated: October 6, 2011. Security Administration; Joan Harrigan-Farrelly, advise the FCC contact listed below as Mr. William Spencer, Clerk, Merit soon as possible. Director, Antimicrobials Division, Office of Systems Protection Board. Pesticide Programs. ADDRESSES: Direct all PRA comments to [FR Doc. 2011–26532 Filed 10–12–11; 8:45 am] Alternate Nicholas A. Fraser, Office of BILLING CODE 6560–50–P Management and Budget, via fax at Mr. Reuben Daniels, Jr., Director, (202) 395–5167 or via the Internet at Charlotte District Office, Equal [email protected] and Employment Opportunity Commission. to the Federal Communications EQUAL EMPLOYMENT OPPORTUNITY Commission via e-mail to [email protected]. COMMISSION Dated: October 6, 2011. By the direction of the Commission. FOR FURTHER INFORMATION CONTACT: Leslie F. Smith, Office of Managing SES Performance Review Board; Jacqueline A. Berrien, Appointment of Members Director, (202) 418–0217. For additional Chair. information, contact Leslie F. Smith, AGENCY: Equal Employment [FR Doc. 2011–26452 Filed 10–12–11; 8:45 am] (202) 418–0217, or via the Internet at Opportunity Commission. BILLING CODE 6570–01–M [email protected].
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SUPPLEMENTARY INFORMATION: Service (IRS) Determination Letter, a The FCC may not conduct or sponsor OMB Control Number: 3060–0812. state charter indicating non-profit a collection of information unless it Title: Exemption from Payment of status, proof of church affiliation displays a currently valid OMB control Regulatory Fees When Claiming Non- indicating tax exempt status, etc. number. No person shall be subject to Profit Status. The FCC is requiring licensees or any penalty for failing to comply with Form Number: N/A. regulatees to maintain and to make a collection of information subject to the Type of Review: Extension of a available, upon request, for inspection Paperwork Reduction Act (PRA) that currently approved collection. such records they would normally keep does not display a valid OMB control Respondents: Not-for-profit in the course of doing business. This number. institutions, businesses, or other for- will enable the FCC to conduct any DATES: Written Paperwork Reduction profit organizations; and State, local, or audits deemed appropriate to determine Act (PRA) comments should be tribal governments. whether fee payments were made submitted on or before December 12, Number of Respondents and correctly, and will help ensure 2011. If you anticipate that you will be Responses: 5,300 respondents; 5,830 compliance with the FCC fee exemption submitting PRA comments, but find it responses. policies. difficult to do so within the period of Estimated Time per Response: 30 While there is no change in the time allowed by this notice, you should minutes (0.5 hours). burden hours for each respondent/ Frequency of Response: advise the FCC contact listed below as reporting entity, the aggregate burdens soon as possible. Recordkeeping; Annual, on occasion, hours have increased due to more ADDRESSES: Submit your PRA comments and one-time reporting requirements. entities having claimed non-profit status to Nicholas A. Fraser, Office of Obligation To Respond: Required to in the last three years. obtain or retain benefits. Statutory Management and Budget (OMB), via fax authority for this information collection Federal Communications Commission. at (202) 395–5167 or via Internet at _ _ is contained in 47 U.S.C. 159. Marlene H. Dortch, Nicholas A. [email protected] and Total Annual Burden: 2,915 hours. Secretary, Office of the Secretary, Office of to Leslie F. Smith, Office of Managing Total Annual Cost: $0.00. Managing Director. Director (OMD), Federal Privacy Act Impact Assessment: No [FR Doc. 2011–26416 Filed 10–12–11; 8:45 am] Communications Commission (FCC), via privacy impacts. BILLING CODE 6712–01–P the Internet at [email protected]. To Nature and Extent of Confidentiality: submit your PRA comments by e-mail Licensees or regulatees concerned about send them to: [email protected]. disclosure of sensitive information in FEDERAL COMMUNICATIONS FOR FURTHER INFORMATION CONTACT: any submission to the Commission may COMMISSION Leslie F. Smith, Office of Managing request confidential treatment pursuant Director (OMD), Federal Information Collection Being Reviewed to 47 CFR 0.459 of the Commission’s Communications Commission (FCC), by the Federal Communications rules. (202) 418–0217, or via the Internet at Needs and Uses: The Federal Commission Under Delegated [email protected]. Communications Commission (FCC), in Authority OMB Control Number: 3060–0812. accordance with the Communications AGENCY: Federal Communications Title: Exemption from Payment of Act of 1934, as amended, is required to Commission. Regulatory Fees When Claiming Non- Profit Status. assess and collect regulatory fees from ACTION: Notice and request for Form Number: N/A. its licensees and regulatees in order to comments. recover its costs incurred in conducting Type of Review: Extension of a enforcement, policy and rulemaking, SUMMARY: As part of its continuing effort currently approved collection. Respondents: Not-for-profit international and user information to reduce paperwork burden and as institutions; business or other for-profit services. required by the Paperwork Reduction The purposes for the requirements are Act (PRA) of 1995 (44 U.S.C. 3501— organizations; and State, local, or tribal to facilitate: (1) The statutory provision 3520), the Federal Communications governments. Number of Respondents and that non-profit entities be exempt from Commission invites the general public Responses: 5,300 respondents; 5,830 payment of regulatory fees; and (2) the and other Federal agencies to take this opportunity to comment on the responses. FCC’s ability to audit regulatory fee Estimated Time per Response: 30 following information collection(s). payment compliance. minutes (0.5 hours). In order to develop a Schedule of Comments are requested concerning: (a) Frequency of Response: Regulatory Fees, the FCC must, as Whether the proposed collection of Recordkeeping; annual, on occasion, accurately as possible, estimate the information is necessary for the proper and one time reporting requirements. number of fee payment entities and performance of the functions of the Obligation To Respond: Required to distribute the costs. These estimates Commission, including whether the obtain or retain benefits. Statutory must be adjusted to account for any information shall have practical utility; authority for this information collection licensees or regulatees that are exempt (b) the accuracy of the Commission’s (IC) is contained in 47 U.S.C. 159. from payment of regulatory fees. The burden estimate; (c) ways to enhance Total Annual Burden: 2,915 hours. FCC, therefore, requires all licensees the quality, utility, and clarity of the Total Annual Cost: N/A. and regulatees that claim exemption as information collected; (d) ways to Privacy Act Impact Assessment: No non-profit entities to provide one-time minimize the burden of the collection of impact. only documentation sufficient to information on the respondents, Nature and Extent of Confidentiality: establish their non-profit status. Further, including the use of automated Licensees or regulates concerned about the FCC is requesting that it be similarly collection techniques or other forms of disclosure of sensitive information in notified if for any reason that status information technology; and (e) ways to any submissions to the Commission changes. The documentation necessary further reduce the information burden may request confidential treatment to provide to the Commission will likely for small business concerns with fewer pursuant to 47 CFR 0.459 of the take the form of an Internal Revenue than 25 employees. Commission’s rules.
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Needs and Uses: The Federal DATE AND TIME: Tuesday, October 18, as a single carrier); A.P. Moller-Maersk Communications Commission (FCC), in 2011 at 10 a.m. A/S trading as Maersk Line; China accordance with the Communications PLACE: 999 E Street, NW., Washington, Shipping Container Lines (Hong Kong) Act of 1934, as amended, is required to DC. Company Limited and China Shipping assess and collect regulatory fees from STATUS: This meeting will be closed to Container Lines Company Limited its licensees and regulatees in order to the public. (operating as a single carrier); CMA recover its costs incurred in conducting CGM, S.A.; COSCO Container Lines enforcement, policy and rulemaking, Items To Be Discussed Company Ltd; Evergreen Line Joint international and user information Compliance matters pursuant to Service Agreement; Hanjin Shipping services. 2 U.S.C. 437g. Co., Ltd.; Hapag-Lloyd AG; Hyundai The purposes for the requirements are Audits conducted pursuant to Merchant Marine Co., Ltd.; Kawasaki to facilitate: (1) The statutory provision 2 U.S.C. 437g, 438(b), and Title 26, Kisen Kaisha Ltd.; Mediterranean that non-profit entities be exempt from U.S.C. Shipping Company; Nippon Yusen payment of regulatory fees; and (2) the Matters concerning participation in Kaisha; Orient Overseas Container Line FCC’s ability to audit regulatory fee civil actions or proceedings or Limited; Yangming Marine Transport payment compliance. arbitration. Corp.; and Zim Integrated Shipping In order to develop a Schedule of Internal personnel rules and Services, Ltd. Regulatory Fees, the FCC must, as procedures or matters affecting a Filing Party: David F. Smith, Esq.; accurately as possible, estimate the particular employee. Cozen O’Connor; 6271 I Street, NW.; number of fee payment entities and * * * * * Suite 1100; Washington, DC 20006. distribute the costs. These estimates PERSON TO CONTACT FOR INFORMATION: Synopsis: The amendment would must be adjusted to account for any Judith Ingram, Press Officer, Telephone: modify the voting requirement for TSA licensees or regulatees that are exempt (202) 694–1220. actions from a unanimous vote to a from payment of regulatory fees. The three-fourths vote. FCC, therefore, requires all licensees Shelley E. Garr, Agreement No.: 012080–001. and regulatees that claim exemption as Deputy Secretary of the Commission. Title: HMM/Hanjin Reciprocal Space non-profit entities to provide one-time [FR Doc. 2011–26663 Filed 10–11–11; 4:15 pm] Charter Agreement. only documentation sufficient to BILLING CODE 6715–01–P Parties: Hyundai Merchant Marine establish their non-profit status. Further, Co., Ltd. and Hanjin Shipping Co., Ltd. the FCC is requesting that it be similarly Filing Parties: Robert B. Yoshitomi, notified if for any reason that status FEDERAL MARITIME COMMISSION Esq.; Nixon Peabody LLP; 555 West 5th changes. The documentation necessary Street, 46th Floor; Los Angeles, CA to provide to the Commission will likely Notice of Agreements Filed 90013–1025 and David F. Smith, Esq.; take the form of an Internal Revenue Sher & Blackwell LLP; 1850 M Street, The Commission hereby gives notice Service (IRS) Determination Letter, a NW.; Suite 900; Washington, DC 20036. of the filing of the following agreements state charter indicating non-profit Synopsis: The amendment removes under the Shipping Act of 1984. status, proof of church affiliation Korea from the geographic scope of Interested parties may submit comments indicating tax exempt status, etc. them agreement and updates Hyundai’s on the agreements to the Secretary, The FCC is requiring licensees or corporate address. Federal Maritime Commission, regulatees to maintain and to make Washington, DC 20573, within ten days Agreement No.: 012118–001. available, upon request, for inspection of the date this notice appears in the Title: CMA CGM/OOCL Victory such records they would normally keep Federal Register. Copies of the Bridge Space Charter Agreement. in the course of doing business. This agreements are available through the Parties: CMA CGM S.A. and Orient will enable the FCC to conduct any Commission’s Web site (http:// Overseas Container Line Limited. audits deemed appropriate to determine Filing Party: Draughn Arbona, Esq.; www.fmc.gov) or by contacting the whether fee payments were made Associate Counsel & Environmental Office of Agreements at (202) 523–5793 correctly, and will help ensure Officer; CMA CGM (America) LLC; 5701 or [email protected]. compliance with the FCC fee exemption Agreement No.: 008005–010. Lake Wright Drive; Norfolk, VA 23502. policies. Title: New York Terminal Conference Synopsis: The amendment increases While there is no change in the Agreement. the amount of space purchased by burden hours for each respondent/ Parties: American Stevedoring Inc.; OOCL from CMA CGM. reporting entity, the aggregate burdens Port Newark Container Terminal LLC; Agreement No.: 012122–001. hours have increased due to more Universal Maritime Service Corp.; New Title: Grand Alliance/Zim/HMM entities having claimed non-profit status York Container Terminal; and Global Transpacific Vessel Sharing Agreement. in the last three years. Terminal and Container Services. Parties: Hapag-Lloyd Federal Communications Commission. Filing Party: George J. Lair; New York Aktiengesellschaft; Hyundai Merchant Marlene H. Dortch, Terminal Conference; P.O. Box 875; Marine Co., Ltd.; Nippon Yusen Kaisha; Secretary, Office of the Secretary, Office of Chatham, NJ 07928. Orient Overseas Container Line Limited; the Managing Director. Synopsis: The amendment substitutes and Zim Integrated Shipping Services [FR Doc. 2011–26417 Filed 10–12–11; 8:45 am] Red Hook Container Terminal, LLC for Limited (ZIM). Filing Party: Wayne Rohde, Esq.; BILLING CODE 6712–01–P American Stevedoring, Inc. as a party to the agreement. The parties requested Cozen O’Connor; 627 I Street, NW.; expedited review. Suite 1100; Washington, DC 20006. Synopsis: The Amendment expands FEDERAL ELECTION COMMISSION Agreement No.: 011223–047. Title: Transpacific Stabilization the geographic scope of the Agreement Sunshine Act Notice Agreement. to include Taiwan. The parties Parties: American President Lines, requested expedited review. AGENCY: Federal Election Commission. Ltd. and APL Co. PTE Ltd.; (operating Agreement No.: 012137.
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Title: Hapag-Lloyd/NYK–Hanjin extended, revised, or implemented on or 452–3829) Telecommunications Device Shipping Slot Exchange Agreement. after October 1, 1995, unless it displays for the Deaf (TDD) users may contact Parties: Hapag-Lloyd AG, Nippon a currently valid OMB control number. (202–263–4869), Board of Governors of Yusen Kaisha, and Hanjin Shipping Co. DATES: Comments must be submitted on the Federal Reserve System, Ltd. or before December 12, 2011. Washington, DC 20551. Filing Parties: Wayne R. Rohde, Esq.; ADDRESSES: You may submit comments, SUPPLEMENTARY INFORMATION: Cozen O’Connor; 1627 I Street, NW.; identified by FR 2028A, FR 2028B, or Suite 1100; Washington, DC 20006– Request for Comment on Information FR 2028S, by any of the following Collection Proposal 4007. methods: Synopsis: The Agreement authorizes • Agency Web Site: http:// The following information collection, the parties to slot charter space on their www.federalreserve.gov. Follow the which is being handled under this services in the trade between the U.S. instructions for submitting comments at delegated authority, has received initial Pacific Coast and Korea, China, Taiwan, http://www.federalreserve.gov/ Board approval and is hereby published Thailand, Vietnam, and Singapore. generalinfo/foia/ProposedRegs.cfm. for comment. At the end of the comment Agreement No.: 012138. • Federal eRulemaking Portal: http:// period, the proposed information Title: CSAV/CCNI Venezuela Space www.regulations.gov. Follow the collection, along with an analysis of Charter Agreement. instructions for submitting comments. comments and recommendations Parties: Compana Sud Americana de • E-mail: received, will be submitted to the Board Vapores S.A. and Compania Chilena de [email protected]. for final approval under OMB delegated Navegacion Interoceanica S.A.. Include docket number in the subject authority. Comments are invited on the Filing Party: Walter H. Lion, Esq.; line of the message. following: McLaughlin & Stern, LLP; 260 Madison • FAX: 202/452–3819 or 202/452– a. Whether the proposed collection of Avenue; New York, NY 10016. 3102. information is necessary for the proper Synopsis: The agreement authorizes • Mail: Jennifer J. Johnson, Secretary, performance of the Federal Reserve’s the parties to charter space on vessels in Board of Governors of the Federal functions; including whether the the trade between U.S. Gulf ports and Reserve System, 20th Street and information has practical utility; ports in Venezuela. Constitution Avenue, NW., Washington, b. The accuracy of the Federal Dated: October 7, 2011. DC 20551. Reserve’s estimate of the burden of the By Order of the Federal Maritime All public comments are available proposed information collection, Commission. from the Board’s Web site at http:// including the validity of the Karen V. Gregory, www.federalreserve.gov/generalinfo/ methodology and assumptions used; foia/ProposedRegs.cfm as submitted, c. Ways to enhance the quality, Secretary. utility, and clarity of the information to [FR Doc. 2011–26482 Filed 10–12–11; 8:45 am] unless modified for technical reasons. Accordingly, your comments will not be be collected; BILLING CODE 6730–01–P edited to remove any identifying or d. Ways to minimize the burden of contact information. Public comments information collection on respondents, may also be viewed electronically or in including through the use of automated FEDERAL RESERVE SYSTEM paper form in Room MP–500 of the collection techniques or other forms of information technology; and Proposed Agency Information Board’s Martin Building (20th and C Streets, NW.) between 9 a.m. and 5 p.m. e. Estimates of capital or start up costs Collection Activities; Comment and costs of operation, maintenance, Request on weekdays. Additionally, commenters should and purchase of services to provide AGENCY: Board of Governors of the send a copy of their comments to the information. Federal Reserve System. OMB Desk Officer—Shagufta Ahmed Proposal To Approve Under OMB SUMMARY: On June 15, 1984, the Office —Office of Information and Regulatory Delegated Authority the Extension for of Management and Budget (OMB) Affairs, Office of Management and Three Years, With Revision, of the delegated to the Board of Governors of Budget, New Executive Office Building, Following Report Room 10235 725 17th Street, NW., the Federal Reserve System (Board) its Report title: Survey of Terms of Washington, DC 20503 or by fax to 202– approval authority under the Paperwork Lending. 395–6974. Reduction Act (PRA), pursuant to 5 CFR Agency form number: FR 2028A, FR 1320.16, to approve of and assign OMB FOR FURTHER INFORMATION CONTACT: A 2028B, and FR 2028S. control numbers to collection of copy of the PRA OMB submission, OMB control number: 7100–0061. information requests and requirements including the proposed reporting form Frequency: Quarterly. conducted or sponsored by the Board and instructions, supporting statement, Reporters: Commercial banks and U.S. under conditions set forth in 5 CFR part and other documentation will be placed branches and agencies of foreign banks 1320 appendix A.1. Board-approved into OMB’s public docket files, once (FR 2028A and FR 2028S only). collections of information are approved. These documents will also be Estimated annual reporting hours: incorporated into the official OMB made available on the Federal Reserve 7,438 hours. inventory of currently approved Board’s public Web site at: http:// Estimated average hours per response: collections of information. Copies of the www.federalreserve.gov/boarddocs/ FR 2028A, 3.65 hours; FR 2028B, 1.4 Paperwork Reduction Act Submission, reportforms/review.cfm or may be hours; and FR 2028S, 0.1 hours. supporting statements and approved requested from the agency clearance Number of respondents: FR 2028A, collection of information instruments officer, whose name appears below. 398; FR 2028B, 250; and FR 2028S, 567. are placed into OMB’s public docket Federal Reserve Board Clearance General description of report: This files. The Federal Reserve may not Officer —Cynthia Ayouch—Division of information collection is authorized by conduct or sponsor, and the respondent Research and Statistics, Board of section 11(a)(2) of the Federal Reserve is not required to respond to, an Governors of the Federal Reserve Act (12 U.S.C. 248(a)(2)) and is information collection that has been System, Washington, DC 20551 (202– voluntary. Individual responses
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reported on the FR 2028A and FR 2028B FEDERAL RESERVE SYSTEM C. Federal Reserve Bank of San are regarded as confidential under the Francisco (Kenneth Binning, Vice Freedom of Information Act (5 U.S.C. Change in Bank Control Notices; President, Applications and 552(b)(4)). Acquisitions of Shares of a Bank or Enforcement) 101 Market Street, San Bank Holding Company Abstract: The Survey of Terms of Francisco, California 94105–1579: Lending collects unique information The notificants listed below have 1. Steven Donald Hovde, Barrington, concerning price and certain nonprice applied under the Change in Bank Illinois; to acquire voting shares of terms of loans made to businesses and Control Act (12 U.S.C. 1817(j)) and Coastal Financial Corporation, and farmers during the first full business § 225.41 of the Board’s Regulation Y (12 thereby indirectly acquire voting shares week of the mid-month of each quarter CFR 225.41) to acquire shares of a bank of Coastal Community Bank, both in (February, May, August, and or bank holding company. The factors Everett, Washington. November). The survey comprises three that are considered in acting on the Board of Governors of the Federal Reserve reporting forms: the FR 2028A, Survey notices are set forth in paragraph 7 of System, October 6, 2011. of Terms of Business Lending; the FR the Act (12 U.S.C. 1817(j)(7)). 2028B, Survey of Terms of Bank The notices are available for Robert deV. Frierson, Lending to Farmers; and the FR 2028S, immediate inspection at the Federal Deputy Secretary of the Board. Prime Rate Supplement to the Survey of Reserve Bank indicated. The notices [FR Doc. 2011–26434 Filed 10–12–11; 8:45 am] Terms of Lending. The FR 2028A and also will be available for inspection at BILLING CODE 6210–01–P FR 2028B collect detailed data on the offices of the Board of Governors. individual loans made during the Interested persons may express their survey week, and the FR 2028S collects views in writing to the Reserve Bank FEDERAL RESERVE SYSTEM the prime interest rate for each day of indicated for that notice or to the offices the survey from both FR 2028A and FR of the Board of Governors. Comments Change in Bank Control Notices; 2028B respondents. From these sample must be received not later than Acquisitions of Shares of a Bank or STL data, estimates of the terms of October 26, 2011. Bank Holding Company business loans and farm loans extended A. Federal Reserve Bank of during the reporting week are Minneapolis (Jacqueline G. King, The notificants listed below have constructed. The aggregate estimates for Community Affairs Officer) 90 applied under the Change in Bank business loans are published in the Hennepin Avenue, Minneapolis, Control Act (12 U.S.C. 1817(j)) and quarterly E.2 release, Survey of Terms of Minnesota 55480–0291: § 225.41 of the Board’s Regulation Y (12 Business Lending, and aggregate 1. Marilyn Senty Ivers, Great Falls, CFR 225.41) to acquire shares of a bank estimates for farm loans are published Montana; to retain voting shares of or bank holding company. The factors in the E.15 release, Agricultural Finance Northern Financial Corporation, and that are considered in acting on the Databook. thereby indirectly retain voting shares of notices are set forth in paragraph 7 of Independence State Bank, both in the Act (12 U.S.C. 1817(j)(7)). Current Actions: The Federal Reserve Independence, Wisconsin. proposes to revise the FR 2028A by B. Federal Reserve Bank of Kansas The notices are available for adding four columns: a data item to City (Dennis Denney, Assistant Vice immediate inspection at the Federal denote if the loan was guaranteed by the President) 1 Memorial Drive, Kansas Reserve Bank indicated. The notices Small Business Administration (SBA), a City, Missouri 64198–0001: also will be available for inspection at data item to indicate if the loan was 1. Jeff A. Berkley Trust II; Karen M. the offices of the Board of Governors. made under either participation or Deckert Trust II, Karla J. Spurgeon Trust Interested persons may express their syndication, the RSSD ID of the branch II; Calvin J. Berkley Trust II; Marika views in writing to the Reserve Bank that originated each loan, and the loan Spurgeon GP Trust; Brenna Spurgeon indicated for that notice or to the offices origination fee in dollars. The Federal GP Trust; Patrick Spurgeon GP Trust; of the Board of Governors. Comments Reserve further proposes to raise the Rebekah Berkley GP Trust; Rachel must be received not later than October minimum loan size reported from Berkley GP Trust; Megan Berkley GP 27, 2011. $7,500 to $10,000. The minimum loan Trust; and Collin Berkley GP Trust, all A. Federal Reserve Bank of San size on the FR 2028B will remain of Tescott, Kansas, to become members Francisco (Kenneth Binning, Vice $3,000, as the mean and median loan of the Berkley Family Group acting in President, Applications and sizes reported on that survey are concert, who control New Millennium Enforcement) 101 Market Street, San significantly smaller than those reported Bankshares, Inc., parent of Alliance Francisco, California 94105–1579: on the business loan survey. The Bank, both in Topeka, Kansas. Federal Reserve proposes to revise the In connection with this application, 1. Montlake Capital II, L.P, a limited FR 2028B by also adding a column to Calvin Berkley and Karen Deckert, both partnership and Montlake Capital II–B, collect the RSSD ID of the branch that of Tescott, Kansas, and Karla Spurgeon, L.P., a limited partnership, both in originated each loan. The proposed Lawrence, Kansas, all co-trustees of one Seattle, Washington, to acquire voting revisions would be implemented or more of the above trusts, have shares of Coastal Financial Corporation, effective for the February 2012 survey applied to become members of the and thereby indirectly acquire voting week. No changes are proposed to the Berkley Family Group. shares of Coastal Community Bank, both FR 2028S. In addition, Calvin Berkley, Karen in Everett, Washington. Board of Governors of the Federal Reserve Deckert, and Karla Spurgeon, Board of Governors of the Federal Reserve System, October 7, 2011. individually as members of the Berkley System, October 7, 2011. Family Group will retain voting shares Jennifer J. Johnson, of New Millennium Bankshares, Inc, Robert deV. Frierson, Secretary of the Board. and thereby indirectly retain voting Deputy Secretary of the Board. [FR Doc. 2011–26459 Filed 10–12–11; 8:45 am] shares of Alliance Bank, both in Topeka, [FR Doc. 2011–26456 Filed 10–12–11; 8:45 am] BILLING CODE 6210–01–P Kansas. BILLING CODE 6210–01–P
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FEDERAL RESERVE SYSTEM FEDERAL RESERVE SYSTEM HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities Formations of, Acquisitions by, and Formations of, Acquisitions by, and will be conducted throughout the Mergers of Bank Holding Companies Mergers of Bank Holding Companies; United States. Correction Unless otherwise noted, comments The companies listed in this notice regarding each of these applications This notice corrects a notice (FR Doc. have applied to the Board for approval, must be received at the Reserve Bank 2011–25986) published on pages 62408 pursuant to the Bank Holding Company indicated or the offices of the Board of and 62409 of the issue for Friday, Governors not later than November 7, Act of 1956 (12 U.S.C. 1841 et seq.) October 7, 2011. (BHC Act), Regulation Y (12 CFR part 2011. Under the Federal Reserve Bank of St. A. Federal Reserve Bank of Cleveland 225), and all other applicable statutes Louis heading, the entry for MutualFirst and regulations to become a bank (Nadine Wallman, Vice President) 1455 Financial, Inc., Muncie, Indiana, is East Sixth Street, Cleveland, Ohio holding company and/or to acquire the revised to read as follows: assets or the ownership of, control of, or 44101–2566: A. Federal Reserve Bank of Chicago 1. Winding Creek Holdings, LLC, the power to vote shares of a bank or (Colette A. Fried, Assistant Vice Toledo, Ohio; to become a savings and bank holding company and all of the President) 230 South LaSalle Street, loan holding company by acquiring 51 banks and nonbanking companies Chicago, Illinois 60690–1414: percent of the voting shares of Bank of owned by the bank holding company, 1. MutualFirst Financial, Inc., Maumee, Maumee, Ohio. including the companies listed below. Muncie, Indiana; to become a bank Board of Governors of the Federal Reserve The applications listed below, as well holding company by acquiring 100 percent of the voting shares of System, October 7, 2011. as other related filings required by the Robert deV. Frierson, Board, are available for immediate MutualBank, Muncie, Indiana. Comments on this application must Deputy Secretary of the Board. inspection at the Federal Reserve Bank be received by November 4, 2011. [FR Doc. 2011–26458 Filed 10–12–11; 8:45 am] indicated. The application also will be BILLING CODE 6210–01–P available for inspection at the offices of Board of Governors of the Federal Reserve the Board of Governors. Interested System, October 7, 2011. persons may express their views in Robert deV. Frierson, Deputy Secretary of the Board. DEPARTMENT OF HEALTH AND writing on the standards enumerated in HUMAN SERVICES the BHC Act (12 U.S.C. 1842(c)). If the [FR Doc. 2011–26457 Filed 10–12–11; 8:45 am] proposal also involves the acquisition of BILLING CODE 6210–01–P Office of the Secretary a nonbanking company, the review also includes whether the acquisition of the Findings of Research Misconduct FEDERAL RESERVE SYSTEM nonbanking company complies with the AGENCY: Office of the Secretary, HHS. standards in section 4 of the BHC Act Formations of, Acquisitions by, and ACTION: Notice. (12 U.S.C. 1843). Unless otherwise Mergers of Savings and Loan Holding noted, nonbanking activities will be Companies SUMMARY: Notice is hereby given that conducted throughout the United States. the Office of Research Integrity (ORI) The companies listed in this notice Unless otherwise noted, comments has taken final action in the following have applied to the Board for approval, case: regarding each of these applications pursuant to the Home Owners’ Loan Act Nicola Solomon, Ph.D., University of must be received at the Reserve Bank (12 U.S.C. 1461 et seq.) (HOLA), Michigan Medical School: Based on an indicated or the offices of the Board of Regulation LL (12 CFR part 238), and investigation conducted by the Governors not later than November 4, Regulation MM (12 CFR part 239), and University of Michigan Medical School 2011. all other applicable statutes and (UMMS) and a preliminary analysis A. Federal Reserve Bank of Richmond regulations to become a savings and conducted by ORI, ORI found that Dr. (Adam M. Drimer, Assistant Vice loan holding company and/or to acquire Nicola Solomon, former postdoctoral President) 701 East Byrd Street, the assets or the ownership of, control scholar, Department of Human Genetics, Richmond, Virginia 23261–4528: of, or the power to vote shares of a UMMS, engaged in research misconduct savings association and nonbanking in research supported by the National 1. First Carolina Financial Services, companies owned by the savings and Institute of Child Health and Human Inc., Durham, North Carolina; to become loan holding company, including the Development (NICHD), National a bank holding company by acquiring companies listed below. Institutes of Health (NIH), grants R37 95.26 percent of the voting securities of The applications listed below, as well HD030428 and R01 HD034283. First Carolina State Bank, Rocky Mount, as other related filings required by the Specifically, the Respondent did not North Carolina, and 95.65 percent of the Board, are available for immediate perform DNA sequencing on 202 cDNA voting securities of Pisgah Community inspection at the Federal Reserve Bank clones of homeobox genes to confirm Bank, Asheville, North Carolina. indicated. The application also will be their identity and integrity. Through Board of Governors of the Federal Reserve available for inspection at the offices of multiple revision of the manuscript, the System, October 6, 2011. the Board of Governors. Interested Respondent did not discuss this with Robert deV. Frierson, persons may express their views in the corresponding author or question writing on the standards enumerated in and correct the corresponding author’s Deputy Secretary of the Board. the HOLA (12 U.S.C. 1467a(e)). If the addition of text indicating that the [FR Doc. 2011–26433 Filed 10–12–11; 8:45 am] proposal also involves the acquisition of clones had been fully sequenced and BILLING CODE 6210–01–P a nonbanking company, the review also were full length or longer (as indicated includes whether the acquisition of the in Table 3) when compared to NCBI nonbanking company complies with the Mus musculus Unigene. This text standards in section 10(c)(4)(B) of the supported the use of the Cap-Trapper
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technique to produce full length clones Department of Health and Human per speaker. To be placed on the public for the discovery of new genes without Services is hereby giving notice that the comment list, notify the operator when polymerase chain reaction (PCR). National Biodefense Science Board you join the teleconference. Both the Respondent and the U.S. (NBSB) will be holding a public meeting Public comments received by close of Public Health Service (PHS) are via teleconference. The meeting is open business one week prior to each desirous of concluding this matter to the public. teleconference will be distributed to the without further expenditure of time and DATES: The NBSB will hold a public NBSB in advance. Submit comments via other resources and have entered into a meeting on October 28, 2011 from 3 email to [email protected], with ‘‘NBSB Voluntary Settlement Agreement to p.m. to 4 p.m. EST. The agenda is Public Comment’’ as the subject line. resolve this matter. This settlement is subject to change as priorities dictate. Dated: October 5, 2011. not an admission of liability on the part ADDRESSES: The meeting will occur by Nicole Lurie, of the Respondent. teleconference. To attend, call 1–866– Respondent and ORI agreed to settle Assistant Secretary for Preparedness and 395–4129, pass-code ‘‘ASPR.’’ Please Response. this matter as follows: call 15 minutes prior to the beginning of (1) Respondent agreed that for a [FR Doc. 2011–26389 Filed 10–12–11; 8:45 am] the conference call to facilitate period of two (2) years beginning on BILLING CODE 4150–37–P attendance. Individuals who wish to September 16, 2011, prior to the participate should send an email to submission of an application for PHS [email protected] with ‘‘NBSB support for a research project on which DEPARTMENT OF HEALTH AND Registration’’ in the subject line. her participation is proposed in a HUMAN SERVICES research capacity, and prior to her FOR FURTHER INFORMATION CONTACT: E- mail: [email protected]. Centers for Disease Control and participation in this capacity on PHS- Prevention supported research, Respondent shall SUPPLEMENTARY INFORMATION: Pursuant ensure that a plan for supervising her to section 319M of the Public Health Healthcare Infection Control Practices duties is submitted to ORI for approval; Service Act (42 U.S.C. 247d–7f) and Advisory Committee, (HICPAC) the supervision must be designed to section 222 of the Public Health Service ensure the scientific integrity of Act (42 U.S.C. 217a), the Department of In accordance with section 10(a)(2) of Respondent’s research contribution; Health and Human Services established the Federal Advisory Committee Act Respondent agreed that she shall not the National Biodefense Science Board. (Pub. L. 92–463), the Centers for Disease participate as a researcher in any PHS- The Board shall provide expert advice Control and Prevention (CDC) supported research until such a and guidance to the Secretary on announces the following meeting for the supervision plan is submitted to and scientific, technical, and other matters aforementioned committee: approved by ORI; Respondent agreed to of special interest to the Department of Times and Dates: maintain responsibility for compliance Health and Human Services regarding 9 a.m.–5 p.m., November 3, 2011. with the agreed upon supervision plan; current and future chemical, biological, 9 a.m.–12 p.m., November 4, 2011. and nuclear, and radiological agents, Place: Embassy Suites-Washington, DC (2) Respondent agreed to exclude whether naturally occurring, accidental, Convention Center, Capital CD Room, 900 or deliberate. The Board may also 10th Street, NW., Washington, DC 2000. herself from serving in any advisory Status: Open to the public, limited only by capacity to PHS including, but not provide advice and guidance to the the space available. Please register for the limited to, service on any PHS advisory Secretary and/or the Assistant Secretary meeting at http://www.cdc.gov/hicpac. committee, board, and/or peer review for Preparedness and Response on other Purpose: The Committee is charged with committee, or as a consultant, for a matters related to public health providing advice and guidance to the period of two (2) years, beginning on emergency preparedness and response. Secretary, the Assistant Secretary for Health, September 16, 2011. Background: The majority of this the Director, CDC, the Director, National public meeting teleconference will be Center for Emerging and Zoonotic Infectious FOR FURTHER INFORMATION CONTACT: Diseases (NCEZID), and the Director, Director, Division of Investigative dedicated to a discussion of the report and recommendations from the NBSB’s Division of Healthcare Quality Promotion Oversight, Office of Research Integrity, regarding (1) The practice of healthcare 1101 Wootton Parkway, Suite 750, Anthrax Vaccine Working Group. infection control; (2) strategies for Rockville, MD 20852, (240) 453–8800. Subsequent agenda topics will be added surveillance, prevention, and control of as priorities dictate. Any additional infections (e.g., nosocomial infections), John Dahlberg, agenda topics will be available on the antimicrobial resistance, and related events Director, Division of Investigative Oversight, Board’s October meeting Web page prior in settings where healthcare is provided; and Office of Research Integrity. to the public meeting. (3) periodic updating of guidelines and other [FR Doc. 2011–26453 Filed 10–12–11; 8:45 am] Availability of Materials: The meeting policy statements regarding prevention of healthcare-associated infections and BILLING CODE 4150–31–P agenda and materials will be posted prior to the meeting on the October healthcare-related conditions. Matters To Be Discussed: The agenda will meeting Web page at http:// include updates on CDC’s activities for DEPARTMENT OF HEALTH AND www.phe.gov/preparedness/legal/ healthcare associated infections, draft HUMAN SERVICES boards/nbsb/pages/default.aspx. guideline for prevention of infections among Procedures for Providing Public Input: patients in neonatal intensive care units Meeting of the National Biodefense Members of the public are invited to (NICU), draft guideline for infection control Science Board attend by teleconference via a toll-free in healthcare personnel, draft guideline for the prevention of surgical site infections, AGENCY: call-in phone number. The Office of the Secretary, update from the HICPAC surveillance Department of Health and Human teleconference will be operator assisted to allow the public the opportunity to working group, and guidance for control of Services. Carbapenem-resistant Enterobacteriaceae. ACTION: Notice. provide comments to the Board. Public Agenda items are subject to change as participation will be limited to time and priorities dictate. SUMMARY: As stipulated by the Federal space available. Public comments will For Further Information Contact: Heidi Advisory Committee Act, the U.S. be limited to no more than 3 minutes Williams, HICPAC, Division of Healthcare
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Quality Promotion, NCEZID, CDC, 1600 promotion of health and well being; and DEPARTMENT OF HEALTH AND Clifton Road, NE., Mailstop A–07, Atlanta, (3) train state and local personnel in HUMAN SERVICES Georgia 30333, E-mail: [email protected]. health work. The BSC, NCEH/ATSDR The Director, Management Analysis and provides advice and guidance to the Administration for Children and Services Office, has been delegated the Families authority to sign Federal Register notices Secretary, HHS; the Director, CDC and pertaining to announcements of meetings and Administrator, ATSDR; and the Director, NCEH/ATSDR, regarding President’s Committee for People With other committee management activities, for Intellectual Disabilities Committee both the Centers for Disease Control and program goals, objectives, strategies, and Prevention and the Agency for Toxic priorities in fulfillment of the agency’s Meeting via Conference Call Substances and Disease Registry. mission to protect and promote people’s AGENCY: President’s Committee for Dated: October 5, 2011. health. The board provides advice and People with Intellectual Disabilities Elaine L. Baker, guidance that will assist NCEH/ATSDR (PCPID), HHS. Director, Management Analysis and Services in ensuring scientific quality, ACTION: Notice of committee meeting via Office, Centers for Disease Control and timeliness, utility, and dissemination of conference call. Prevention. results. The board also provides [FR Doc. 2011–26477 Filed 10–12–11; 8:45 am] guidance to help NCEH/ATSDR work DATES: Friday, October 28, 2011, from 1 more efficiently and effectively with its BILLING CODE 4163–18–P p.m. to 2:30 p.m. EST. This meeting, to various constituents and to fulfill its be held via audio conference call, is mission in protecting America’s health. open to the public. DEPARTMENT OF HEALTH AND Matters To Be Discussed: The agenda Details for accessing the full HUMAN SERVICES items for the BSC Meeting on November Committee Conference Call, for the 3–4, 2011, will include NCEH/ATSDR public, are cited below: Centers for Disease Control and Office of the Director updates: ATSDR Toll Free Dial-In Number: 888–282– Prevention and NCEH Reorganization; update on 9630; Asthma, Lead and Healthy Homes Pass Code: 9329684. Board of Scientific Counselors, Program; presentation on public health Individuals who will need National Center for Environmental prioritization at ATSDR; update on the accommodations in order to participate Health/Agency for Toxic Substances Nutritional Biomarker Report: transfat in the PCPID Meeting via audio and Disease Registry (BSC, NCEH/ analysis; update on ATSDR Science conferencing (assistive listening ATSDR) Symposium; update on Camp LeJeune; devices, materials in alternative format update on Environmental Health In accordance with section 10(a)(2) of such as large print or Braille) should Tracking; presentation on hydraulic the Federal Advisory Committee Act notify Genevieve Swift, PCPID fracking; global health updates: indoor (Pub. L. 92–463), the Centers for Disease Executive Administrative Assistant, at air pollution and health and lead in Control and Prevention (CDC), [email protected], or by Nigeria. telephone at 202–619–0634, no later announces the following meeting of the Agenda items are subject to change as aforementioned committee: than Friday, October 21, 2011. PCPID priorities dictate. will attempt to meet requests for Times and Dates SUPPLEMENTARY INFORMATION: The accommodations made after that date, 8:30 a.m.–4:30 p.m., November 3, public comment period is scheduled on but cannot guarantee ability to grant 2011. Thursday, November 3, 2011 from 4:15 requests received after this deadline. 8:30 a.m.–12:30 p.m., November 4, p.m. until 4:25 p.m., and Friday, Agenda: Committee Members will 2011. November 4, 2011, from 12:15 p.m. until review and approve the 2011 PCPID Place: CDC, 4770 Buford Highway, 12:25 p.m. Report (Letter) to the President. Atlanta, Georgia 30341. Contact Person for More Information: Additional Information: For further Status: Open to the public, limited Sandra Malcom, Committee information, please contact Laverdia only by the space available. The meeting Management Specialist, NCEH/ATSDR, Taylor Roach, Senior Advisor, room accommodates approximately 75 4770 Buford Highway, Mail Stop F–61, President’s Committee for People with people. Chamblee, Georgia 30345; Telephone: Intellectual Disabilities, The Aerospace Purpose: The Secretary, Department (770) 488–0575; Fax: (770) 488–3377; E- Center, Second Floor West, 370 L’Enfant of Health and Human Services (HHS) mail: [email protected]. The deadline Promenade, SW., Washington, DC and by delegation, the Director, CDC for notification of attendance is October 20447. Telephone: 202–619–0634. Fax: and Administrator, NCEH/ATSDR, are 27, 2011. 202–205–9519. E-mail: authorized under Section 301 (42 U.S.C. The Director, Management Analysis [email protected]. and Services Office, has been delegated 241) and Section 311 (42 U.S.C. 243) of SUPPLEMENTARY INFORMATION: PCPID the Public Health Service Act, as the authority to sign Federal Register acts in an advisory capacity to the amended, to: (1) Conduct, encourage, notices pertaining to announcements of President and the Secretary of Health cooperate with, and assist other meetings and other committee and Human Services, through the appropriate public authorities, scientific management activities for both the Administration on Developmental institutions, and scientists in the Centers for Disease Control and Disabilities, on a broad range of topics conduct of research, investigations, Prevention, and the Agency for Toxic relating to programs, services, and experiments, demonstrations, and Substances and Disease Registry. supports for persons with intellectual studies relating to the causes, diagnosis, Dated: October 6, 2011. disabilities. The PCPID Executive Order treatment, control, and prevention of Catherine Ramadei, stipulates that the Committee shall: (1) physical and mental diseases and other Acting Director, Management Analysis and Provide such advice concerning impairments; (2) assist states and their Services Office, Centers for Disease Control intellectual disabilities as the President political subdivisions in the prevention and Prevention (CDC). or the Secretary of Health and Human of infectious diseases and other [FR Doc. 2011–26501 Filed 10–12–11; 8:45 am] Services may request; and (2) provide preventable conditions and in the BILLING CODE 4163–18–P advice to the President concerning the
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following for people with intellectual found at the following Web site: http:// DEPARTMENT OF HEALTH AND disabilities: (A) Expansion of www.hrsa.gov/advisorycommittees/bhpraac/. HUMAN SERVICES educational opportunities; (B) Dated: October 6, 2011. National Institutes of Health promotion of homeownership; (C) Reva Harris, assurance of workplace integration; (D) Acting Director, Division of Policy and Eunice Kennedy Shriver National improvement of transportation options; Information Coordination. (E) expansion of full access to Institute of Child Health & Human [FR Doc. 2011–26451 Filed 10–12–11; 8:45 am] community living; and (F) increasing Development; Notice of Closed access to assistive and universally BILLING CODE 4165–15–P Meeting designed technologies. Pursuant to section 10(d) of the Dated: October 6, 2011. DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as Jamie Kendall, HUMAN SERVICES amended (5 U.S.C. App.), notice is Deputy Commissioner, Administration on hereby given of the following meeting. Developmental Disabilities. National Institutes of Health The meeting will be closed to the public in accordance with the [FR Doc. 2011–26522 Filed 10–12–11; 8:45 am] Eunice Kennedy Shriver National provisions set forth in sections BILLING CODE 4184–01–P Institute of Child Health & Human 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Development; Notice of Closed as amended. The grant applications and DEPARTMENT OF HEALTH AND Meeting the discussions could disclose HUMAN SERVICES confidential trade secrets or commercial Pursuant to section 10(d) of the property such as patentable material, Health Resources and Services Federal Advisory Committee Act, as and personal information concerning Administration amended (5 U.S.C. App.), notice is individuals associated with the grant hereby given of the following meeting. applications, the disclosure of which Bureau of Health Professions All- The meeting will be closed to the would constitute a clearly unwarranted Advisory Committee Meeting public in accordance with the invasion of personal privacy. provisions set forth in sections Name of Committee: National Institute of In accordance with section 10(a)(2) of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Child Health and Human Development the Federal Advisory Committee Act as amended. The grant applications and Special Emphasis Panel, Maternofetal (Pub. L. 92–463), notice is hereby given the discussions could disclose Signaling and Lifelong Consequences. of the following meeting: Date: November 3, 2011. confidential trade secrets or commercial Time: 1:30 p.m. to 5 p.m. Name: Bureau of Health Professions All- property such as patentable material, Agenda: To review and evaluate grant Advisory Committee, Meeting (AACM). and personal information concerning applications. Date and Time: November 9, 2011, 8 a.m.– individuals associated with the grant Place: National Institutes of Health, 6100 5 p.m. applications, the disclosure of which Executive Boulevard, Rockville, MD 20852 Place: Georgetown University Hotel and (Telephone Conference Call). Conference Center, 3800 Reservoir Road, would constitute a clearly unwarranted invasion of personal privacy. Contact Person: Peter Zelazowski, PhD, NW., Washington, DC 20057, Telephone: Scientific Review Officer, Division of 202–687–3200. Name of Committee: National Institute of Scientific Review, Eunice Kennedy Shriver Status: The meeting will be open to the Child Health and Human Development Initial National Institute of Child Health and public. Review Group, Biobehavioral and Behavioral Human Development, NIH, 6100 Executive Purpose: The purpose of the meeting is to Sciences Subcommittee. Blvd., Room 5B01, Bethesda, MD 20892, provide a venue for the Bureau of Health Date: November 4, 2011. 301–435–6902, [email protected]. Professions’ (BHPr) four advisory committees Time: 9 a.m. to 5 p.m. (Catalogue of Federal Domestic Assistance [the Council on Graduate Medical Education Agenda: To review and evaluate grant Program Nos. 93.864, Population Research; (COGME), the Advisory Committee on 93.865, Research for Mothers and Children; Training in Primary Care Medicine and applications. Place: The Dupont Hotel, 1500 New 93.929, Center for Medical Rehabilitation Dentistry (ACTPCMD), the Advisory Research; 93.209, Contraception and Committee on Interdisciplinary, Community- Hampshire Avenue, NW., Washington, DC 20036. Infertility Loan Repayment Program, National Based Linkages (ACICBL), and the National Institutes of Health, HHS) Advisory Council on Nurse Education and Contact Person: Marita R. Hopmann, PhD, Practice (NACNEP)] to develop a common Scientific Review Officer, Division of Dated: October 6, 2011. knowledge of performance measurement and Scientific Review, Eunice Kennedy Shriver Jennifer S. Spaeth, longitudinal evaluation in their new role of National Institute of Child Health and Director, Office of Federal Advisory partnering with BHPr to improve program Human Development, NIH, 6100 Executive Committee Policy. effectiveness. Blvd., Room 5B01, Bethesda, MD 20892, [FR Doc. 2011–26492 Filed 10–12–11; 8:45 am] Agenda: The AACM agenda will include 301–435–6911, [email protected]. BILLING CODE 4140–01–P updates on Bureau priorities, review of the (Catalogue of Federal Domestic Assistance new responsibilities for the advisory Program Nos. 93.864, Population Research; committees in response to the Affordable 93.865, Research for Mothers and Children; DEPARTMENT OF HEALTH AND Care Act, newly revised BHPr performance 93.929, Center for Medical Rehabilitation measures and longitudinal evaluation plans. HUMAN SERVICES Research; 93.209, Contraception and Agenda items are subject to change as Infertility Loan Repayment Program, National priorities dictate. National Institutes of Health Institutes of Health, HHS) For Further Information Contact: Anyone interested in obtaining a roster of members, Dated: October 6, 2011. National Institute of Mental Health; minutes of the meeting, or other relevant Jennifer S. Spaeth, Notice of Closed Meetings information can contact the Bureau of Health Director, Office of Federal Advisory Professions, Office of the Associate Pursuant to section 10(d) of the Committee Policy. Administrator, 5600 Fishers Lane, Room 9– Federal Advisory Committee Act, as 05, Rockville, Maryland 20857; telephone [FR Doc. 2011–26491 Filed 10–12–11; 8:45 am] amended (5 U.S.C. App.), notice is (301) 443–5794. Information can also be BILLING CODE 4140–01–P hereby given of the following meetings.
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The meetings will be closed to the Agenda: To review and evaluate grant Date: November 1–2, 2011. public in accordance with the applications. Time: 9 a.m. to 11 p.m. provisions set forth in sections Place: National Institutes of Health, Agenda: To review and evaluate grant Neuroscience Center, 6001 Executive applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Boulevard, Rockville, MD 20852 (Telephone Place: National Institutes of Health, 6701 as amended. The grant applications and Conference Call). Rockledge Drive, Bethesda, MD 20892 the discussions could disclose Contact Person: Vinod Charles, PhD, (Virtual Meeting). confidential trade secrets or commercial Scientific Review Officer, Division of Contact Person: Bo Hong, PHD, Scientific property such as patentable material, Extramural Activities, National Institute of Review Officer, Center for Scientific Review, and personal information concerning Mental Health, NIH, Neuroscience Center, National Institutes of Health, 6701 Rockledge individuals associated with the grant 6001 Executive Blvd., Room 6151, MSC 9606, Drive, Room 6194, MSC 7804, Bethesda, MD applications, the disclosure of which Bethesda, MD 20892–9606, 301–443–1606, 20892, 301–435–5879, [email protected]. [email protected]. would constitute a clearly unwarranted Name of Committee: AIDS and Related (Catalogue of Federal Domestic Assistance Research Integrated Review Group; invasion of personal privacy. Program Nos. 93.242, Mental Health Research Behavioral and Social Consequences of HIV/ Name of Committee: National Institute of Grants; 93.281, Scientist Development AIDS Study Section. Mental Health Special Emphasis Panel, Award, Scientist Development Award for Date: November 8–9, 2011. National Cooperative Drug Discovery and Clinicians, and Research Scientist Award; Time: 8 a.m. to 10 a.m. Development Group. 93.282, Mental Health National Research Agenda: To review and evaluate grant Date: November 4, 2011. Service Awards for Research Training, applications. Time: 1 p.m. to 3 p.m. National Institutes of Health, HHS) Place: Marriott Wardman Park Washington Agenda: To review and evaluate grant Dated: October 6, 2011. DC Hotel, 2660 Woodley Road, NW., applications. Washington, DC 20008. Place: National Institutes of Health, Jennifer S. Spaeth, Contact Person: Mark P Rubert, PHD, Neuroscience Center, 6001 Executive Director, Office of Federal Advisory Scientific Review Officer, Center for Boulevard, Rockville, MD 20852 (Telephone Committee Policy. Scientific Review, National Institutes of Conference Call). [FR Doc. 2011–26494 Filed 10–12–11; 8:45 am] Health, 6701 Rockledge Drive, Room 5218, Contact Person: Vinod Charles, PhD, BILLING CODE 4140–01–P MSC 7852, Bethesda, MD 20892, 301–806– Scientific Review Officer, Division of 6596, [email protected]. Extramural Activities, National Institute of Name of Committee: Center for Scientific Mental Health, NIH, Neuroscience Center, DEPARTMENT OF HEALTH AND Review Special Emphasis Panel; Small 6001 Executive Blvd., Room 6151, MSC 9606, HUMAN SERVICES Business: Diabetes and Nutrition. Bethesda, MD 20892–9606, 301–443–1606, Date: November 8, 2011. [email protected]. National Institutes of Health Time: 12 p.m. to 6 p.m. Name of Committee: National Institute of Agenda: To review and evaluate grant Mental Health Special Emphasis Panel, R34/ Center for Scientific Review Notice of applications. T32 HIV and AIDS applications. Closed Meetings Place: National Institutes of Health, 6701 Date: November 7, 2011. Rockledge Drive, Bethesda, MD 20892 Time: 1 p.m. to 5 p.m. Pursuant to section 10(d) of the (Virtual Meeting). Agenda: To review and evaluate grant Federal Advisory Committee Act, as Contact Person: Krish Krishnan, PHD, applications. amended (5 U.S.C. App.), notice is Scientific Review Officer, Center for Place: National Institutes of Health, Scientific Review, National Institutes of hereby given of the following meetings. Health, 6701 Rockledge Drive, Room 6164, Neuroscience Center, 6001 Executive The meetings will be closed to the Boulevard, Rockville, MD 20852 (Telephone MSC 7892, Bethesda, MD 20892, (301) 435– Conference Call). public in accordance with the 1041, [email protected]. Contact Person: Megan Libbey, PhD, provisions set forth in sections (Catalogue of Federal Domestic Assistance Scientific Review Officer, Division of 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Program Nos. 93.306, Comparative Medicine; Extramural Activities, National Institute of as amended. The grant applications and 93.333, Clinical Research; 93.306, 93.333, Mental Health, NIH, Neuroscience Center, the discussions could disclose 93.337, 93.393–93.396, 93.837–93.844, 6001 Executive Blvd., Room 6148, MSC 9609, confidential trade secrets or commercial 93.846–93.878, 93.892, 93.893, National Rockville, MD 20852–9609, 301–402–6807, property such as patentable material, Institutes of Health, HHS) [email protected]. and personal information concerning Dated: October 6, 2011. Name of Committee: National Institute of individuals associated with the grant Jennifer S. Spaeth, Mental Health Special Emphasis Panel, HIV: applications, the disclosure of which Treatment Engagement and Retention. Director, Office of Federal Advisory Date: November 18, 2011. would constitute a clearly unwarranted Committee Policy. Time: 8:30 a.m. to 5 p.m. invasion of personal privacy. [FR Doc. 2011–26495 Filed 10–12–11; 8:45 am] Agenda: To review and evaluate grant Name of Committee: Center for Scientific BILLING CODE 4140–01–P applications. Review Special Emphasis Panel; Place: Hyatt Regency Bethesda, One Neuropsychiatric Disorders and Bethesda Metro Center, 7400 Wisconsin Neuropathies Special Emphasis Panel. DEPARTMENT OF HEALTH AND Avenue, Bethesda, MD 20814. Date: October 26, 2011. Contact Person: David I. Sommers, PhD, Time: 2 p.m. to 4 p.m. HUMAN SERVICES Scientific Review Officer, Division of Agenda: To review and evaluate grant Extramural Activities, National Institute of applications. National Institutes of Health Mental Health, National Institutes of Health, Place: National Institutes of Health, 6701 6001 Executive Blvd., Room 6154, MSC 9606, Rockledge Drive, Bethesda, MD 20892 National Heart, Lung, and Blood Bethesda, MD 20892–9606, 301–443–7861, (Telephone Conference Call). Institute; Notice of Closed Meetings [email protected]. Contact Person: Jay Joshi, PHD, Scientific Pursuant to section 10(d) of the Name of Committee: National Institute of Review Officer, Center for Scientific Review, Mental Health Special Emphasis Panel, National Institutes of Health, 6701 Rockledge Federal Advisory Committee Act, as Intergrating Multi-Dimensional Data to Drive, Room 5196, MSC 7846, Bethesda, MD amended (5 U.S.C. App.), notice is Explore Mechanisms Underlying Mental 20892, (301) 408–9135, [email protected]. hereby given of the following meetings. Disorders. Name of Committee: Center for Scientific The meetings will be closed to the Date: November 21, 2011. Review Special Emphasis Panel; Small public in accordance with the Time: 2 p.m. to 4 p.m. Business: Radiation Therapy and Biology. provisions set forth in sections
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552b(c)(4) and 552b(c)(6), Title 5 U.S.C., DEPARTMENT OF HEALTH AND U.S. Coast Guard intends to submit as amended. The grant applications and HUMAN SERVICES Information Collection Requests (ICRs) the discussions could disclose to the Office of Management and Budget confidential trade secrets or commercial National Institutes of Health (OMB), Office of Information and property such as patentable material, Regulatory Affairs (OIRA), requesting and personal information concerning Center for Scientific Review; Notice of approval of revisions to the following individuals associated with the grant Closed Meeting collections of information: 1625–0034, applications, the disclosure of which Pursuant to section 10(d) of the Ships’ Stores Certification for would constitute a clearly unwarranted Federal Advisory Committee Act, as Hazardous Materials Aboard Ships; and invasion of personal privacy. amended (5 U.S.C. App.), notice is 1625–0043, Ports and Waterways Name of Committee: National Heart, Lung, hereby given of the following meeting. Safety—Title 33 CFR Subchapter P. Our and Blood Institute Special Emphasis Panel, The meeting will be closed to the ICRs describe the information we seek NHLBI Conference Grant Review. public in accordance with the to collect from the public. Before Date: November 1–2, 2011. provisions set forth in sections submitting these ICRs to OIRA, the Time: 8 a.m. to 5 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Coast Guard is inviting comments as Agenda: To review and evaluate grant as amended. The grant applications and described below. applications. the discussions could disclose DATES: Comments must reach the Coast Place: National Institutes of Health, 6701 confidential trade secrets or commercial Guard on or before December 12, 2011. Rockledge Drive, Bethesda, MD 20892. property such as patentable material, ADDRESSES: You may submit comments Contact Person: Dana Phares, PhD, and personal information concerning identified by Coast Guard docket Scientific Review Officer, Office of Scientific individuals associated with the grant number [USCG–2011–0955] to the Review/DERA, National Heart, Lung, and applications, the disclosure of which Blood Institute, 6701 Rockledge Drive, Room Docket Management Facility (DMF) at would constitute a clearly unwarranted 7179, Bethesda, MD 20892–7924, 301–435– the U.S. Department of Transportation 0310, [email protected]. invasion of personal privacy. (DOT). To avoid duplicate submissions, Name of Committee: National Heart, Lung, Name of Committee: Center for Scientific please use only one of the following and Blood Institute Special Emphasis Panel, Review Special Emphasis Panel, Member means: Blood Pressure Regulations PPG. Conflict: Epidemiology and Genetics of (1) Online: http:// Date: November 1, 2011. Cancer. www.regulations.gov. Date: October 27, 2011. Time: 11 a.m. to 3 p.m. (2) Mail: DMF (M–30), DOT, West Time: 1 p.m. to 2:30 p.m. Agenda: To review and evaluate grant Building Ground Floor, Room W12–140, Agenda: To review and evaluate grant 1200 New Jersey Avenue, SE., applications. applications. Place: Doubletree Hotel Bethesda Place: National Institutes of Health, 6701 Washington, DC 20590–0001. (Formerly Holiday Inn Select), 8120 Rockledge Drive, Bethesda, MD 20892 (3) Hand delivery: Same as mail Wisconsin Avenue, Bethesda, MD 20814. (Telephone Conference Call). address above, between 9 a.m. and 5 Contact Person: Keary A. Cope, PhD, Contact Person: Fungai Chanetsa, MPH., p.m., Monday through Friday, except Scientific Review Officer, Office of Scientific PhD, Scientific Review Officer, Center for Federal holidays. The telephone number Review/DERA, National Heart, Lung, and Scientific Review, National Institutes of is 202–366–9329. Blood Institute, 6701 Rockledge Drive, Room Health, 6701 Rockledge Drive, Room 3135, (4) Fax: 202–493–2251. To ensure 7190, Bethesda, MD 20892–7924, 301–435– MSC 7770, Bethesda, MD 20892, 301–408– your comments are received in a timely 9436, [email protected]. 2222, [email protected]. manner, mark the fax, to attention Desk Name of Committee: National Heart, Lung, (Catalogue of Federal Domestic Assistance Officer for the Coast Guard. and Blood Institute Special Emphasis Panel, Program Nos. 93.306, Comparative Medicine; The DMF maintains the public docket Anchoring Metabolic Changes in Phenotype. 93.333, Clinical Research; 93.306, 93.333, 93.337, 93.393–93.396, 93.837–93.844, for this Notice. Comments and material Date: November 3, 2011. received from the public, as well as Time: 8 a.m. to 5 p.m. 93.846–93.878, 93.892, 93.893, National Agenda: To review and evaluate grant Institutes of Health, HHS) documents mentioned in this Notice as applications. Dated: October 6, 2011. being available in the docket, will become part of the docket and will be Place: Hilton Garden Inn Washington DC/ Jennifer S. Spaeth, Bethesda, 7301 Waverly Street, Bethesda, MD available for inspection or copying at Director, Office of Federal Advisory room W12–140 on the West Building 20814. Committee Policy. Contact Person: Susan Wohler Sunnarborg, Ground Floor, 1200 New Jersey Avenue, PhD, Scientific Review Officer, Office of [FR Doc. 2011–26493 Filed 10–12–11; 8:45 am] SE., Washington, DC, between 9 a.m. Scientific Review/DERA, National, Heart, BILLING CODE 4140–01–P and 5 p.m., Monday through Friday, Lung, and Blood Institute, 6701 Rockledge except Federal holidays. You may also Drive, Room 7185, Bethesda, MD 20892, find the docket on the Internet at [email protected]. DEPARTMENT OF HOMELAND http://www.regulations.gov. (Catalogue of Federal Domestic Assistance SECURITY Copies of the ICRs are available Program Nos. 93.233, National Center for through the docket on the Internet at Sleep Disorders Research; 93.837, Heart and Coast Guard http://www.regulations.gov. Vascular Diseases Research; 93.838, Lung [USCG–2011–0955] Additionally, copies are available from: Diseases Research; 93.839, Blood Diseases Commandant (CG–611), Attn: and Resources Research, National Institutes Information Collection Requests to Paperwork Reduction Act Manager, U.S. of Health, HHS) Office of Management and Budget Coast Guard, 2100 2nd St., SW., Stop Dated: October 6, 2011. AGENCY: Coast Guard, DHS. 7101, Washington, DC 20593–7101. Jennifer S. Spaeth, ACTION: Sixty-day notice requesting FOR FURTHER INFORMATION CONTACT: Ms. Director, Office of Federal Advisory comments. Kenlinishia Tyler, Office of Information Committee Policy. Management, telephone 202–475–3652, [FR Doc. 2011–26496 Filed 10–12–11; 8:45 am] SUMMARY: In compliance with the or fax 202–475–3929, for questions on BILLING CODE 4140–01–P Paperwork Reduction Act of 1995, the these documents. Contact Ms. Renee V.
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Wright, Program Manager, Docket a comment online via http:// Summary: The information is used by Operations, 202–366–9826, for www.regulations.gov, it will be the Coast Guard to ensure that questions on the docket. considered received by the Coast Guard personnel aboard ships are made aware SUPPLEMENTARY INFORMATION: when you successfully transmit the of the proper usage and stowage comment. If you fax, hand deliver, or instructions for certain hazardous Public Participation and Request for mail your comment, it will be Comments materials. Provisions are made for considered as having been received by waivers of products in special This Notice relies on the authority of the Coast Guard when it is received at Department of Transportation (DOT) the Paperwork Reduction Act of 1995; the DMF. We recommend you include hazard classes. 44 U.S.C. Chapter 35, as amended. An your name, mailing address, an e-mail ICR is an application to OIRA seeking address, or other contact information in Need: Section 3306 of 46 U.S.C. the approval, extension, or renewal of a the body of your document so that we authorizes the Coast Guard to prescribe Coast Guard collection of information can contact you if we have questions regulations for the transportation, (Collection). The ICR contains regarding your submission. stowage, and use of ships’ stores and information describing the Collection’s You may submit your comments and supplies of a dangerous nature. Part 147 purpose, the Collection’s likely burden material by electronic means, mail, fax, of 46 CFR prescribes the regulations for on the affected public, an explanation of or delivery to the DMF at the address hazardous ships’ stores. the necessity of the Collection, and under ADDRESSES; but please submit Forms: None. other important information describing them by only one means. To submit Respondents: Owners and operators the Collections. There is one ICR for your comment online, go to http:// of ships, and suppliers and each Collection. www.regulations.gov, and type ‘‘USCG– manufacturers of hazardous materials The Coast Guard invites comments on 2011–0955’’ in the ‘‘Keyword’’ box. If whether these ICRs should be granted you submit your comments by mail or used on ships. based on the Collections being hand delivery, submit them in an Frequency: On occasion. necessary for the proper performance of unbound format, no larger than 81⁄2; by Burden Estimate: The estimated Departmental functions. In particular, 11 inches, suitable for copying and the Coast Guard would appreciate burden has decreased from 12 hours to electronic filing. If you submit comments addressing: (1) The practical 8 hours a year. comments by mail and would like to utility of the Collections; (2) the know that they reached the Facility, 2. Title: Ports and Waterways Safety— accuracy of the estimated burden of the please enclose a stamped, self-addressed Title 33 CFR Subchapter P. Collections; (3) ways to enhance the postcard or envelope. We will consider OMB Control Number: 1625–0043. quality, utility, and clarity of all comments and material received information subject to the Collections; Summary: This collection of during the comment period and will and (4) ways to minimize the burden of information allows the master, owner, address them accordingly. the Collections on respondents, or agent of a vessel affected by these including the use of automated Viewing comments and documents: rules to request a deviation from the collection techniques or other forms of To view comments, as well as requirements governing navigation information technology. In response to documents mentioned in this Notice as safety equipment to the extent that there your comments, we may revise these being available in the docket, go to is no reduction in safety. http://www.regulations.gov, click on the ICRs or decide not to seek approval for Need: Provisions in 33 CFR chapter I, the Collections. We will consider all ‘‘read comments’’ box, which will then subchapter P, allow any person directly comments and material received during become highlighted in blue. In the affected by the rules in that subchapter the comment period. ‘‘Keyword’’ box insert ‘‘USCG–2011– We encourage you to respond to this 0955’’ and click ‘‘Search.’’ Click the to request a deviation from any of the request by submitting comments and ‘‘Open Docket Folder’’ in the ‘‘Actions’’ requirements as long as it does not related materials. Comments must column. You may also visit the DMF in compromise safety. This collection contain the OMB Control Number of the Room W12–140 on the ground floor of enables the Coast Guard to evaluate the ICR and the docket number of this the DOT West Building, 1200 New information the respondent supplies, to request, [USCG–2011–0955], and must Jersey Avenue, SE., Washington, DC determine whether it justifies the be received by December 12, 2011. We 20590, between 9 a.m. and 5 p.m., request for a deviation. Monday through Friday, except Federal will post all comments received, Forms: None. without change, to http:// holidays. Respondents: Master, owner, or agent www.regulations.gov. They will include Privacy Act any personal information you provide. of a vessel. We have an agreement with DOT to use Anyone can search the electronic Frequency: On occasion. form of comments received in dockets their DMF. Please see the ‘‘Privacy Act’’ Burden Estimate: The estimated by the name of the individual paragraph below. burden has decreased from 2,865 hours submitting the comment (or signing the Submitting Comments comment, if submitted on behalf of an to 2,447 hours a year. If you submit a comment, please association, business, labor union, etc.). Dated: October 5, 2011. include the docket number [USCG– You may review a Privacy Act statement R.E. Day, 2011–0955], indicate the specific regarding Coast Guard public dockets in Rear Admiral, U.S. Coast Guard, Assistant section of the document to which each the January 17, 2008, issue of the Commandant for Command, Control, comment applies, providing a reason for Federal Register (73 FR 3316). Communications, Computers and each comment. You may submit your Information Collection Requests Information Technology. comments and material online (via [FR Doc. 2011–26412 Filed 10–12–11; 8:45 am] 1. Title: Ships’ Stores Certification for http://www.regulations.gov), by fax, BILLING CODE 9110–04–P mail, or hand delivery, but please use Hazardous Materials Aboard Ships. only one of these means. If you submit OMB Control Number: 1625–0034.
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DEPARTMENT OF HOMELAND You may submit your comments and review and update the 2005 manual. SECURITY material by the methods specified in the The draft PDA Manual, therefore, was ADDRESSES section above. Please submit prepared and reviewed by FEMA Federal Emergency Management your comments and any supporting regional staff, in collaboration with Agency material by only one means to avoid the State and local government [Docket ID FEMA–2011–0022] receipt and review of duplicate representatives, including Tribes, with submissions. extensive field experience in performing Preliminary Damage Assessment for Docket: The proposed manual is PDAs. It incorporates procedures available in Docket ID FEMA–2011– Individual Assistance Operations developed and used by individual 0022. For access to the docket to read Manual (9327.2–PR) FEMA regional offices in the course of background documents or comments AGENCY: Federal Emergency received, go to the Federal eRulemaking conducting PDAs throughout the United Management Agency, DHS. Portal at http://www.regulations.gov and States in a variety of disasters over several years. It reflects FEMA’s ACTION: Notice of availability; request search for the Docket ID. Submitted for comments. comments may also be inspected at extensive experience working with State FEMA, Office of Chief Counsel, Room and local governments. The draft PDA SUMMARY: The Federal Emergency 835, 500 C Street, SW., Washington, DC Manual is intended to set the standard Management Agency (FEMA) is 20472. for defining and recording levels of accepting comments on the draft damage; as well as to establish II. Background Preliminary Damage Assessment for uniformity in the composition of teams Individual Assistance Operations The Preliminary Damage Assessment and the means by which data is Manual (9327.2–PR). for Individual Assistance Operations collected. Manual (PDA Manual) was developed to DATES: Comments must be received by The proposed manual does not have November 14, 2011. create uniform procedures for performing Individual Assistance (IA) the force or effect of law. ADDRESSES: Comments must be Preliminary Damage Assessments FEMA seeks comment on the draft identified by Docket ID FEMA–2011– (PDAs) nationwide in response to an 0022 and may be submitted by one of PDA Manual, which is available online impacted State’s request. The primary the following methods: at http://www.regulations.gov in Docket purpose for conducting IA PDAs is to Federal eRulemaking Portal: http:// ID FEMA–2011–0022. Based on the identify the impact, type, and extent of www.regulations.gov. Follow the comments received, FEMA may make disaster damages and to determine the instructions for submitting comments. appropriate revisions to the draft impact on individuals and communities Please note that this proposed manual is manual. Although FEMA will consider while identifying the resources needed not a rulemaking and the Federal any comments received in the drafting for the community to recover. of the final manual, FEMA will not Rulemaking Portal is being utilized only The PDA is an important first step in provide a response to comments as a mechanism for receiving comments. the disaster declaration process. The Mail: Legislation, Regulations, & PDA information will be used by the document. When or if FEMA issues a Policy Division, Office of Chief Counsel, State to determine if the response and final manual, FEMA will publish a Federal Emergency Management recovery actions will require Federal notice of availability in the Federal Agency, Room 835, 500 C Street, SW., support. If the Governor determines that Register and make the final manual Washington, DC 20472–3100. the State does not have adequate available at http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: resources to respond and recover from The final manual will not have the force Michael M. Grimm, Individual the disaster, and supplemental Federal or effect of law. Assistance Director, Individual assistance is required, the Governor may Authority: The draft PDA Manual is Assistance Division, FEMA, 202–212– request a Presidential emergency or consistent with and supports the current 1000, for additional information. You major disaster declaration under the plans and procedures of the National can also access a copy of the draft Robert T. Stafford Disaster Relief and Response Framework for Preliminary Damage Assessment for Emergency Assistance Act, as amended implementation of the Robert T. Stafford Individual Assistance Operations (42 U.S.C. 5170 and 5191). The PDA Disaster Relief and Emergency Manual (9327.2–PR) on http:// information, along with the Governor’s Assistance Act, as amended, 42 U.S.C. www.fema.gov; keyword, PDA Manual. request is included with the Regional 5121 et seq. and its implementing SUPPLEMENTARY INFORMATION Summary, Analysis, and regulations in Title 44, Chapter I of the Recommendations (RSAR) and is I. Public Participation Code of Federal Regulations. forwarded to FEMA for review. FEMA Instructions: All submissions received then prepares a recommendation to the Dated: October 6, 2011. must include the agency name and President based on the PDA information W. Craig Fugate, Docket ID. Regardless of the method and RSAR. Establishing a single set of Administrator, Federal Emergency used for submitting comments or PDA procedures ensures that regardless Management Agency. material, all submissions will be posted, of the location, type of disaster, or [FR Doc. 2011–26390 Filed 10–12–11; 8:45 am] without change, to the Federal FEMA Regional Office involved, the BILLING CODE 9111–23–P eRulemaking Portal at http:// assessment of damages will be www.regulations.gov, and will include consistent, thorough, and well any personal information you provide. coordinated. Therefore, submitting this information The draft PDA Manual would makes it public. You may wish to read supersede FEMA Manual 9327.1 PR, the Privacy Act notice, which can be Preliminary Damage Assessment for viewed by clicking on the ‘‘Privacy Individual Assistance Operations Notice’’ link in the footer of Manual, dated April 2005. FEMA www.regulations.gov. convened an IA PDA working group to
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DEPARTMENT OF HOMELAND calling into question their continued the Status and Family Branch, Service SECURITY eligibility for TPS under the Sudan Center Operations Directorate, U.S. designation. These individuals may, Citizenship and Immigration Services, Citizenship and Immigration Services however, now qualify for TPS under the Department of Homeland Security, 20 [CIS No. 2513–11; DHS Docket No. USCIS– South Sudan designation. This Notice Massachusetts Avenue, NW., 2011–0012] sets forth regular procedures and special Washington, DC 20529–2060 or by procedures necessary for nationals of phone at (202) 272–1533 (this is not a RIN 1615–ZB08 South Sudan (or aliens having no toll-free number). Note: The phone nationality who last habitually resided number provided here is solely for Designation of Republic of South in the region that is now South Sudan) questions regarding this TPS notice. It is Sudan for Temporary Protected Status to register and to apply for TPS and not for individual case status inquiries. • AGENCY: U.S. Citizenship and Employment Authorization Documents Applicants seeking information Immigration Services, Department of (EADs) with U.S. Citizenship and about the status of their individual cases Homeland Security. Immigration Services (USCIS). can check Case Status Online available Given the timeframes involved with at the USCIS Web site at http:// ACTION: Notice. processing TPS applications, the www.uscis.gov, or call the USCIS SUMMARY: This Notice announces that Department of Homeland Security National Customer Service Center at 1– (DHS) recognizes that individuals who 800–375–5283 (TTY 1–800–767–1833). the Secretary of Homeland Security • (Secretary) has designated the Republic have EADs under Sudan TPS that expire Further information will also be of South Sudan (South Sudan) for November 2, 2011 may not receive new available at local USCIS offices upon Temporary Protected Status (TPS) for a EADs under South Sudan TPS until publication of this Notice. period of 18 months, effective after their current EADs expire. SUPPLEMENTARY INFORMATION: Accordingly, the validity of EADs November 3, 2011 through May 2, 2013. Abbreviations and Terms Used in This issued under the TPS designation of Under section 244(b)(1) of the Document Immigration and Nationality Act (INA), Sudan has been automatically extended the Secretary is authorized to grant TPS for 6 months, through May 2, 2012. This ASC—USCIS Application Support Center. CPA—Comprehensive Peace Agreement. to eligible nationals of designated automatic extension includes individuals who are now applying for DHS—Department of Homeland Security. foreign states or parts of such states (or DOS—Department of State. to eligible aliens having no nationality TPS under the designation of South EAD—Employment Authorization Document. who last habitually resided in such Sudan but were granted TPS and were Government—U.S. Government. states) upon finding that such states are issued an EAD under the Sudan GSS—Government of South Sudan. experiencing ongoing armed conflict, designation. This Notice explains how IDP—Internally Displaced Person. environmental disaster, or other TPS beneficiaries and their employers INA—Immigration and Nationality Act. extraordinary and temporary conditions may determine which EADs are LRA—Lord’s Resistance Army. OCHA—United Nations Office for the that prevent nationals from returning automatically extended and how the extension affects employment eligibility Coordination of Humanitarian Affairs. safely. OSC—U.S. Department of Justice, Office of This designation allows eligible South verification (Form I–9 and E–Verify) Special Counsel for Immigration-Related Sudan nationals (and aliens having no processes. This Notice also describes Unfair Employment Practices. nationality who last habitually resided examples of acceptable evidence of SAF—Sudan Armed Forces. in the region that is now South Sudan) South Sudanese nationality required for Secretary—Secretary of Homeland Security. who have continuously resided in the TPS registration under the South Sudan South Sudan—Republic of South Sudan. United States since October 7, 2004 to designation. SPLA—Sudan People’s Liberation Army. SPLM/A—Sudan People’s Liberation DATES: This designation of South Sudan obtain TPS. In addition to Movement/Army. demonstrating continuous residence in for TPS is effective on November 3, TPS—Temporary Protected Status. the United States since October 7, 2004, 2011 and will remain in effect through UN—United Nations. applicants for TPS under this May 2, 2013. The 180-day registration UNHCR—Office of the United Nations High designation must demonstrate that they period for eligible individuals to submit Commissioner for Refugees. have been continuously physically initial TPS applications begins October UNMISS—United Nations Mission in the present in the United States since 13, 2011, and will remain in effect until Republic of South Sudan. November 3, 2011, the effective date of April 10, 2012. USAID—U.S. Agency for International Development. the designation of South Sudan. The FOR FURTHER INFORMATION CONTACT: • USCIS—U.S. Citizenship and Immigration Secretary has established November 3, For further information on TPS, Services. 2011, as the effective date so that the 18- including guidance on the application month designation of South Sudan will process and additional information on What is Temporary Protected Status coincide with the 18-month extension eligibility, please visit the TPS Web (TPS)? period of TPS for Sudan, which is also page at http://www.uscis.gov/tps. You • TPS is an immigration status being announced today. Although can find specific information about this granted to eligible nationals (or to November 3, 2011, is a future date, designation and about TPS for South persons without nationality who last applicants may begin applying for TPS Sudan by selecting ‘‘TPS Designated habitually resided in the designated immediately. Country—Republic of South Sudan’’ country) of a country designated for TPS This designation is unique because on from the menu on the left of the TPS under the Immigration and Nationality July 9, 2011, South Sudan became a new Web page. From the South Sudan page, Act (Act). nation and independent from the you can select the ‘‘South Sudan TPS • During the TPS designation period, Republic of Sudan, which has been Questions & Answers’’ section from the TPS beneficiaries are eligible to remain designated for TPS since 1997. Some menu on the right for further in the United States and may obtain individuals who are TPS beneficiaries information. employment authorization, so long as under the current designation of Sudan • You can also contact the TPS they continue to meet the requirements may now be nationals of South Sudan, Operations Program Manager by mail at of TPS.
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• The granting of TPS does not lead Why is the Secretary designating South Commissioner for Refugees (UNHCR), to permanent resident status. Sudan for TPS through May 2, 2013? during the past two years South Sudan • When the Secretary of Homeland The Secretary has determined, after has experienced increasing violence, Security (Secretary) terminates a consultation with appropriate mostly related to armed militia groups, country’s TPS designation, beneficiaries Government agencies, that there is an including LRA and inter-tribal clashes. return to the same immigration status ongoing armed conflict in the Republic There are also reports of human rights they maintained before TPS (unless that of South Sudan and that requiring the abuses by southern security forces, status has since expired or been return of South Sudanese nationals to including the police and the Sudan terminated) or to any other lawfully South Sudan would pose a serious People’s Liberation Army (SPLA). These obtained immigration status that they reported abuses range from arbitrary threat to their personal safety. received while registered for TPS. detention to the killing of civilians. The Furthermore, there exist extraordinary SPLA also continues to have child What authority does the Secretary of and temporary conditions in South soldiers within its ranks. The United Homeland Security have to designate Sudan that prevent nationals of South Nations (UN) Security Council South Sudan for TPS? Sudan from returning in safety, and the established the United Nations Mission Secretary does not find that permitting Section 244(b)(1) of the INA, 8 U.S.C. in the Republic of South Sudan the aliens to remain temporarily in the 1254a(b)(1), authorizes the Secretary, (UNMISS) to assist with ‘‘functions United States is contrary to the national after consultation with appropriate relating to humanitarian assistance, and interest of the United States. Government agencies, to designate a protection and promotion of human 1 On July 9, 2011, South Sudan became foreign state (or part thereof) for TPS. rights.’’ As of May 31, 2011, UNMISS the world’s newest nation. Formal The Secretary can designate a foreign had 9,264 troops out of an authorized independence for South Sudan state for TPS based on one of three 10,000 total military personnel. concluded the interim period of the circumstances. One circumstance is if UNMISS troops have sustained 60 ‘‘there is an ongoing armed conflict January 2005 Comprehensive Peace fatalities since the mission deployed. within the state and, due to such Agreement (CPA) that ended more than In January 2011, UNHCR reported that conflict, requiring the return of aliens two decades of civil war between the LRA violence displaced some 600,000 who are nationals of that state to that Government of Sudan in Khartoum and additional people in the previous 18 state (or to the part of the state) would the Sudan People’s Liberation months and has brought ‘‘a radical shift pose a serious threat to their personal Movement/Army (SPLM/A). These in patterns of violence [that] points to a safety.’’ INA sec. 244(b)(1)(A), 8 U.S.C. groups had been fighting for the clear targeting of women and children.’’ 1254a(b)(1)(A). The Secretary can also autonomy of South Sudan. While some LRA attacks in the western part of South designate a foreign state for TPS if provisions of the CPA were upheld, Sudan were reported on a monthly basis ‘‘there exist extraordinary and many contentious issues remain throughout 2010. In most cases, these temporary conditions in the foreign unresolved and present potential for attacks were on vulnerable, isolated state that prevent aliens who are further conflict. communities, with indiscriminate nationals of the state from returning to The April 2010 nationwide elections killing, abduction, rape, mutilation, the state in safety, unless the [Secretary] in Sudan did not meet international looting, and destruction of property. finds that permitting the aliens to standards. Reported abuses in South According to Human Rights Watch, remain temporarily in the United States Sudan included security force throughout 2010 ‘‘[p]atterns of is contrary to the national interest of the restrictions on and harassment of the intercommunal violence stemming from United States.’’ INA sec. 244(b)(1)(C), 8 opposition, including widespread cattle-rustling and other localized U.S.C. 1254a(b)(1)(C). human rights abuses. The January 2011 disputes across Southern Sudan Following the designation of a foreign referendum itself, in which an continued to put civilians at risk of state for TPS, the Secretary may grant overwhelming majority of registered physical violence and killings.’’ In TPS to eligible nationals of that foreign South Sudanese voters chose addition to the upsurge in LRA and state (or aliens having no nationality independence, was largely peaceful. intercommunal violence, new conflicts who last habitually resided in that The CPA-mandated ceasefire between have developed between government state). Applicants must demonstrate, Sudan government forces and the armed forces, and the ensuing violence among other things, that they have been SPLM/A was largely upheld (though has had a significant, negative both ‘‘continually physically present’’ in outbreaks of violence did occur) until humanitarian impact. the United States since the effective date conflicts along the North-South border The transitional areas of Abyei, Blue of the designation, which is either the between Sudan and South Sudan Nile State, and Southern Kordofan/Nuba date of the Federal Register notice erupted starting in May 2011. Mountains remain potential flashpoints announcing the designation or such During the past two years, South because of their position along the later date as the Secretary may Sudan has experienced increasing North-South border, much of which determine, and that they have violence related to intercommunal remains undemarcated. As part of the ‘‘continuously resided’’ in the United conflict, conflict between the SPLM/A CPA, the area of Abyei was to be jointly States since such date as the Secretary and irregular armed forces, and targeted administered until local residents may designate. INA secs. 244(a)(1)(A), attacks on civilians by the Lord’s determined whether they would join the (b)(2)(A), (c)(1)(A)(i–ii); 8 U.S.C. Resistance Army (LRA). The transitional North or South, but the referendum has 1254a(a)(1)(A), (b)(2)(A), (c)(1)(A)(i–ii). areas along the North-South border yet to be held. Reports indicate that in (Abyei, Blue Nile and Southern the months leading up to South Sudan’s 1 As of March 1, 2003, in accordance with section Kordofan) continued to suffer from independence, both the Northern and 1517 of title XV of the Homeland Security Act of 2002 (HSA), Public Law 107–296, 116 Stat. 2135, inter-tribal tensions, and are flashpoints Southern armies reinforced their any reference to the Attorney General in a provision for violence involving government positions near Abyei. On May 19, 2011, of the INA describing functions transferred under troops of both sides as well as irregular in a move condemned by the UN as a the HSA from the Department of Justice to DHS breach of the CPA, Sudanese troops ‘‘shall be deemed to refer to the Secretary [of armed groups. Homeland Security].’’ See 6 U.S.C. 557 (codifying According to an early 2011 report by attacked and took control of Abyei. On HSA, tit. XV, 1517). the Office of the United Nations High June 20, 2011, Sudan and South Sudan
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reached an agreement on temporary assistance during this season. According certain areas where large populations of administration measures and to the U.S. Agency for International persons in need of assistance are demilitarization of the area. As part of Development (USAID), mass population located. UNHCR and USAID report that that agreement, the UN Security Council displacement caused by conflict in insecurity and logistical concerns as ordered a 4,200-strong Ethiopian South Sudan since early 2011 caused well as weather conditions are likely to peacekeeping force into the region to the loss of lean season food stocks. As continue hindering access to areas of monitor the troops’ withdrawal. a result, most of the displaced are now South Sudan. Violence has increased in South in crisis and are relying on food Based on this review, and after Kordofan. In June 2011, fighting assistance. USAID projects that ongoing consultation with the appropriate between the Khartoum-based Sudan conflict will likely impact crop Government agencies, the Secretary has Armed Forces (SAF) and the SPLA cultivation and harvests and that the determined that: erupted in the state capital of Kadugli. situation could worsen significantly • Requiring the return of South On June 25, 2011, the UN Office for the because of the compounding impacts of Sudanese nationals to South Sudan Coordination of Humanitarian Affairs insecurity, displacement, high food poses a serious threat to their personal (OCHA) reported that the SAF was prices, and returnees from Sudan who safety due to an ongoing armed conflict. conducting airstrikes and artillery increase competition for scarce See INA sec. 244(b)(1)(A), 8 U.S.C. shelling in the eastern and southern resources. 1254a(b)(1)(A). parts of the Nuba Mountains. Insecurity due to ongoing fighting, • Eyewitnesses stated that SAF forces and the targeting of civilians for serious Nationals of South Sudan cannot killed people in the streets of Kadugli human rights abuses, has led to return to South Sudan in safety due to for looking ‘‘too black,’’ with no regard continued displacement of the South extraordinary and temporary conditions. for whether they supported the Sudanese population. Displacement and See INA sec. 244(b)(1)(C), 8 U.S.C. Southern army. According to the British factors related to food insecurity— 1254a(b)(1)(C). Broadcasting Corporation, satellite including drought, flooding, and rising • It is not contrary to the national imagery has located mass graves in food prices—are at the root of the interest of the United States to permit Kordofan. The SAF actions further ongoing humanitarian crisis. South South Sudanese nationals (and persons threaten the fragile peace between the Sudan is already considered one of the without nationality who last habitually North and South, as SAF bombing raids poorest, least-developed places in the resided in the region that is now South in Sudan’s South Kordofan State have world. The mass influx of South Sudan) who meet the eligibility spilled across the border into South Sudanese returning from Sudan requirements of TPS to remain in the Sudan’s Unity State. continues to strain limited resources, United States temporarily. See INA sec. In addition to the recent violence in and high levels of humanitarian needs 244(b)(1)(C), 8 U.S.C. 1254a(b)(1)(C). Abyei and South Kordofan, there have are reported in areas that have a high • The designation of South Sudan for been other indications that the peace concentration of returnees. TPS should be for an 18-month period. treaty remains fragile. In January and According to the UN, approximately See INA sec. 244(b)(2), 8 U.S.C. February 2011, factions of the SAF two million internally displaced 1254a(b)(2). stationed in South Sudan’s Upper Nile persons (IDPs) and 350,000 refugees • The date by which South Sudan State engaged in violent clashes. Reports have returned to South Sudan since TPS applicants must demonstrate that indicated that the soldiers were fighting 2005. In late October 2010, the South they have continuously resided in the over weapons and whether they will Sudanese government began an United States is established as October relocate to the North as ordered after the accelerated return program. The number 7, 2004, which is the same date that results of the referendum favored of returnees significantly increased, must be met by re-registering TPS independence. By extension, the failure with an estimated 143,000 persons applicants under the extension of TPS to demobilize the 180,000 soldiers from returning during October to December for Sudan. See INA sec. 244(c)(1)(A)(ii), both Sudan and South Sudan as 2010. The South Sudanese government 8 U.S.C. 1254a(c)(1)(A)(ii). required by the CPA is of further has been under significant strain trying • concern. to reintegrate and provide a safe The date by which South Sudan According to information on the UN environment for the existing returnees. TPS applicants must demonstrate that Web page, ‘‘About South Sudan,’’ 35.7 Furthermore, there are still an estimated they have been continuously physically percent of the population in South one million South Sudanese in Sudan. present in the United States is Sudan is food-insecure and requires The estimated number of civilians killed November 3, 2011, the effective date of assistance, and 50 percent of the in South Sudan during 2010 is 980. this TPS designation of South Sudan. population does not have access to Between January and July 2011, more See INA secs. 244(b)(2)(A), (c)(1)(A)(i); 8 drinking water. South Sudan census than 2,300 civilians were killed. An U.S.C. 1254a(b)(2)(A), (c)(1)(A)(i). results indicate that more than 50 estimated 215,000 to 220,000 South • There are approximately 340 percent of the population lives below Sudanese civilians became IDPs in individuals who currently have TPS the poverty line on less than one dollar 2010. Between January and July 2011, under the designation of Sudan. DHS a day, and 80 percent lack adequate approximately 264,143 became IDPs. estimates that the combined total of sanitation. In January 2011, the World There are multiple factors impeding Sudanese and South Sudanese who will Food Programme warned of growing delivery of humanitarian aid. It is be eligible for TPS under this signs of drought in the Horn of Africa. estimated that there are fewer than 100 designation and the extension of TPS for As of July 21, 2011, OCHA reported that km of paved roads in South Sudan, and Sudan is approximately 340. DHS although the drought has not yet the accessibility of those roads is recognizes that the actual number of affected South Sudan directly, food compromised during the rainy season. registering South Sudanese applicants security is fragile and the living The ability of aid workers to provide may be lower than 340, because some of situation remains uncertain as close to much-needed humanitarian assistance those 340 individuals may re-register for one million people are currently is further compromised by dangers to Sudan TPS, while others may qualify to receiving food assistance and at least an aid workers but also by government change their registration from TPS for additional 400,000 are expected to need prohibitions on operations and access to Sudan to TPS for South Sudan.
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Notice of the Designation of South • You must pay the Form I–765 submit a biometric services fee. As Sudan for TPS application fee if you want an previously stated, if you are unable to By the authority vested in me as employment authorization document pay, you may apply for a biometrics Secretary of Homeland Security under (EAD), Form I–766, or submit a fee services fee waiver by completing a waiver request. Form I–912, or a personal letter section 244 of the Act, 8 U.S.C. 1254a, • after consultation with the appropriate If you have a pending Form I–765 requesting a fee waiver, and providing Government agencies, I designate the that you previously submitted with your satisfactory supporting documentation. Republic of South Sudan for temporary request for TPS Sudan and you have not If you have a pending TPS application protected status (TPS) under sections yet received your EAD with either a C– under the Sudan designation and you 244(b)(1)(A) and (C) of the Immigration 19 or A–12 notation, then you do not paid the biometrics fee, or received a fee and Nationality Act, 8 U.S.C. need to re-pay the I–765 application fee. waiver grant for that pending 1254a(b)(1)(A) and (C), for a period of 18 You should submit a copy of your most application, then you do not need to re- months from November 3, 2011 through recent USCIS fee receipt notice for the pay the biometrics fee. You should May 2, 2013. Form I–765, or your fee waiver grant submit your USCIS fee receipt notice notice, with your new I–765 showing that you paid the fee, or notice Janet Napolitano, application. Your fee (or fee waiver of fee waiver, with your Form I–821 Secretary. grant) will be applied to your when applying under the designation application for an EAD under the South for South Sudan. For more information Required Application Forms and Sudan designation if your EAD has not on the biometric services fee, please Application Fees to Register for TPS been mailed to you yet. visit the USCIS Web site at http:// To register for TPS, an applicant must • You do not pay the Form I–765 fee www.uscis.gov. You may be required to submit: if you are under the age of 14 or over visit an Application Support Center to 1. Form I–821, Application for the age of 65 and you want an EAD have your biometrics captured. Temporary Protected Status, since this is an initial registration. Refiling of TPS Application Packet • If you are not a TPS beneficiary • You do not pay the Form I–765 fee After Receiving a Fee Waiver Denial under the Sudan designation (or have a if you are not requesting an EAD. pending TPS application under TPS You must submit both completed If you request a fee waiver when filing Sudan), you must pay the Form I–821 application forms together. If you are your TPS and EAD application forms application fee which is $50. If you are unable to pay, you may apply for and your request is denied, you may unable to pay the fee, you may submit application and/or biometrics fee refile your application packet with the a fee waiver request with appropriate waivers by completing a Request for Fee correct fees before the filing deadline documentation. Waiver (Form I–912) or submitting a April 10, 2012. If you receive the USCIS • If you are currently a TPS personal letter requesting a fee waiver, fee waiver denial and there are fewer beneficiary under the Sudan designation and providing satisfactory supporting than 45 days before the filing deadline, (or you have a pending TPS Sudan documentation. For more information or the deadline has passed, you may application) but you are now a South on the application forms and still refile your application packet, with Sudan national, you should file an application fees for TPS, please visit the the correct fees, within the 45-day initial application for South Sudan TPS. USCIS TPS Web page at http:// period after the date on the USCIS fee You do not, however, have to pay the www.uscis.gov/tps and click on waiver denial notice. Your application Form I–821 $50 application fee again ‘‘Temporary Protected Status for South packet and fees will not be rejected even since you are currently a TPS Sudan.’’ Fees for Form I–821, Form I– if the deadline has passed, provided beneficiary under Sudan (or have a 765, and biometric services are also they are mailed within those 45 days pending TPS application under Sudan) listed in 8 CFR 103.7(b). and all other required information for and you have already paid the the applications is included. application fee (or been granted a fee Biometric Services Fee waiver); and Biometrics (such as fingerprints) are Mailing Information 2. Form I–765, Application for required for all applicants 14 years of Mail your application for TPS to the Employment Authorization. age or older. Those applicants must proper address in Table 1:
TABLE 1—MAILING ADDRESSES
If . . . Mail to . . .
You are applying through the U.S. Postal Service ...... USCIS, P.O. Box 8677, Chicago, IL 60680–8677. You are using a Non-U.S. Postal Service delivery service ...... USCIS, Attn: South Sudan TPS, 131 S. Dearborn 3rd Floor, Chicago, IL 60603–5517.
E-Filing Supporting Documents include a copy of your passport if available, other documentation issued You cannot electronically file your What type of basic supporting documentation must I submit? by the Government of South Sudan application when applying for initial (GSS) showing your nationality (e.g., registration for TPS. Please mail your To meet the basic eligibility national identity card, official travel application to the mailing address listed requirements for TPS, you must submit documentation issued by the GSS), and/ in Table 1 above. evidence that you: or your birth certificate with English • Are a national of South Sudan or an translation accompanied by photo alien of no nationality who last identification. USCIS will also consider habitually resided in the region that is certain forms of secondary evidence now South Sudan. Such documents may
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supporting your South Sudanese Employment Authorization Document authorization through May 2, 2012 to nationality, such as your voter (EAD) (Form I–766) your employer. As an alternative to registration documentation for the May I request an interim EAD at my presenting your automatically extended January 2011 referendum on South local USCIS office? EAD, you may choose to present any Sudan’s independence. If the evidence other acceptable document from List A, presented is insufficient for USCIS to No. USCIS will not issue interim or List B plus List C. make a determination as to your EADs to TPS applicants at USCIS local What documentation may I show my nationality, USCIS may request you to offices. employer if I am already employed but provide additional evidence. DHS Am I eligible to receive an automatic 6- my current TPS-related EAD is set to recognizes the unique situation month extension if I have a current EAD expire? regarding the availability of nationality under Sudan TPS that expires documentation presented by the very November 2, 2011? You must present any document from recent creation of South Sudan. You will receive an automatic 6- List A or any document from List C on Therefore, if you do not possess primary month extension from November 2, Form I–9 to reverify employment evidence, such as a passport, of your 2011 through May 2, 2012, of your EAD authorization. Employers are required to South Sudanese citizenship, you should if you: reverify on Form I–9 the employment provide as much secondary evidence as • Received an EAD under the last authorization of current employees you can with your TPS application to extension of TPS for Sudan, and upon the expiration of a TPS-related • demonstrate your citizenship. If you Have not had TPS withdrawn or EAD. have tried to obtain evidence of your denied. If you received a 6-month automatic South Sudanese nationality, but have This automatic extension is limited to extension of your EAD as described in been unsuccessful, you may also submit EADs with an expiration date of this Federal Register notice, your an affidavit showing proof of your November 2, 2011. These EADs must employer does not need to reverify until unsuccessful efforts to obtain such also bear the notation ‘‘A–12’’ or ‘‘C–19’’ on the face of the card under after May 2, 2012. However, you and documents and affirming that you are a ‘‘Category.’’ your employer do need to make national of South Sudan. However, corrections to the employment please be aware that an interview with When hired, what documentation may I authorization expiration dates in an immigration officer is required if you show to my employer as proof of Section 1 and Section 2 of the Form I– do not present any documentary proof employment authorization and identity 9 (see the subsection below titled ‘‘What of identity or nationality. (See 8 CFR when completing employment eligibility corrections should my employer at my 244.9(a)(1)); verification, Form I–9? current job and I make to Form I–9 if my • Have continually resided in the You can find a list of acceptable EAD has been automatically extended?’’ United States since October 7, 2004 (see document choices on page 5 of the for further information). In addition, Employment Eligibility Verification 8 CFR 244.9(a)(2)); you may also show this Federal Register form, Form I–9. Employers are required • notice to your employer to avoid Have been continually physically to verify the identity and employment confusion about whether or not your present in the United States since authorization of all new employees by November 3, 2011, the effective date of using Form I–9. Within three days of expired TPS-related document is the designation of South Sudan; and hire, an employee must present proof of acceptable. After May 2, 2012, when the • Two color passport-style identity and employment authorization automatic extension expires, your photographs of yourself. to his or her employer. employer must reverify your You may present any document from employment authorization. You may The filing instructions on Form I–821, List A (reflecting both your identity and show any document from List A or List Application for Temporary Protected employment authorization), or one C on Form I–9 to satisfy this Status, list all the documents needed to document from List B (reflecting reverification requirement. establish basic eligibility for TPS. You identity) together with one document What happens after May 2, 2012 for may also see information on the from List C (reflecting employment purposes of employment authorization? acceptable documentation and other authorization). An EAD is an acceptable requirements for applying for TPS on document under ‘‘List A.’’ After May 2, 2012, employers may not the USCIS Web site at http:// If you received a 6-month automatic accept the EADs that were automatically www.uscis.gov under ‘‘Temporary extension of your EAD issued under extended as described in this Federal Protected Status for South Sudan.’’ Sudan TPS as described in this Federal Register notice. However, USCIS will Register notice, you may choose to Do I need to submit additional issue new EADs to TPS re-registrants. present your automatically extended supporting documentation? These EADs will have an expiration EAD, as described above, to your employer as proof of identity and date of May 2, 2013 and can be If one or more of the questions listed presented to your employer as proof of in Part 4, Question 2 of the Form I–821 employment authorization for Form I–9 through May 2, 2012 (see the subsection employment authorization and identity. applies to you, then you must submit an The EAD will bear the notation ‘‘A–12’’ explanation on a separate sheet(s) of below titled ‘‘How do I and my employer complete Form I–9 (i.e., or ‘‘C–19’’ on the face of the card under paper and/or additional documentation. ‘‘Category.’’ Alternatively, you may Depending on the nature of the verification) using an automatically extended EAD for a new job’’ for further choose to present any other legally question(s) you are addressing, information). To minimize confusion acceptable document or combination of additional documentation alone may over this extension at the time of hire, documents listed on the Form I–9 to suffice, but usually a written you may also show a copy of this prove identity and employment explanation will also be needed. Federal Register notice regarding the authorization. automatic extension of employment
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How do my employer and I complete Expiring’’ case alert when a TPS 1–800–255–7688 for information Form I–9 (i.e., verification) using an beneficiary’s EAD is about to expire. regarding employment discrimination automatically extended EAD for a new Usually, this message is an alert to based upon citizenship or immigration job? complete Section 3 of Form I–9 to status, or national origin, unfair When using an automatically reverify an employee’s employment documentary practices related to the authorization. For existing employees extended EAD to fill out Form I–9 for Form I–9, or discriminatory practices with TPS EADs that have been a new job prior to May 2, 2012, you and related to E-Verify. Employers must automatically extended, employers your employer should do the following: accept any document or combination of should disregard the E-Verify case alert (1) For Section 1, you should: documents acceptable for Form I–9 and follow the instructions above a. Check ‘‘An alien authorized to completion if the documentation explaining how to correct Form I–9. work;’’ reasonably appears to be genuine and to After May 2, 2012, employment b. Write your alien number (A- relate to the employee. Employers may authorization needs to be reverified in number) in the first space (your EAD or not require extra or additional Section 3. You should never use E- other document from DHS will have documentation beyond what is required Verify for reverification. your A-number printed on it); and for Form I–9 completion. Further, c. Write the automatic extension date Can my employer require that I produce employees who receive an initial in the second space. any other documentation to prove my mismatch via E-Verify must be given an (2) For Section 2, employers should: status, such as proof of my South opportunity to challenge the mismatch, a. Record the document title; Sudanese citizenship? and employers are prohibited from taking adverse action against such b. Record the document number; and No. When completing the Form I–9, c. Record the automatically extended employees based on the initial employers must accept any mismatch unless and until E-Verify EAD expiration date. documentation that appears on the lists After May 2, 2012, employers must returns a final nonconfirmation. The of acceptable documentation, and that Hotline accepts calls in multiple reverify the employee’s employment reasonably appears to be genuine and authorization in Section 3 of Form I–9. languages. Additional information is that relates to you. Employers may not available on the OSC Web site at What corrections should my employer at request documentation that does not http://www.justice.gov/crt/osc/. my current job and I make to Form I– appear on the Form I–9. Therefore, 9 if my EAD has been automatically employers may not request proof of Note Regarding Federal, State, and extended? South Sudanese citizenship when Local Government Agencies (Such as completing Form I–9. If presented with Departments of Motor Vehicles) If you are an existing employee who EADs that are unexpired on their face, State and local government agencies presented a TPS EAD that was valid employers should accept such EADs as when you first started your job, but that are permitted to create their own valid ‘‘List A’’ documents so long as the guidelines when granting certain EAD has now been automatically EADs reasonably appear to be genuine extended, you and your employer benefits, such as a driver’s license or an and to relate to the employee. See below identification card. Each state may have should correct your previously for important information about your completed Form I–9 as follows: different laws, requirements, and rights if your employer rejects lawful determinations about what documents (1) For Section 1, you should: documentation, requires additional a. Draw a line through the expiration you need to provide to prove eligibility documentation, or otherwise for certain benefits. If you are applying date in the second space; discriminates against you because of b. Write ‘‘May 2, 2012’’ above the for a state or local government benefit, your citizenship or immigration status, you may need to provide the state or previous date; or national origin. c. Write ‘‘TPS Ext.’’ in the margin of local government agency with Section 1; and Note to Employers documents that show you are a TPS beneficiary and/or show you are a. Initial and date the correction in the Employers are reminded that the laws authorized to work based on TPS. margin of Section 1. requiring employment eligibility Examples are: (2) For Section 2, employers should: verification and prohibiting unfair a. Draw a line through the expiration immigration-related employment (1) Your expired EAD that has been date written in Section 2; practices remain in full force. This automatically extended, or your EAD b. Write ‘‘May 2, 2012’’ above the notice does not supersede or in any way that has a valid expiration date; previous date; limit applicable employment (2) A copy of this Federal Register c. Write ‘‘TPS Ext.’’ in the margin of verification rules and policy guidance, notice if you have an automatically Section 2; and including those rules setting forth extended EAD; d. Initial and date the correction in reverification requirements. For (3) A copy of your Application for the margin of Section 2. questions, employers may call the Temporary Protected Status, Form I–821 After May 2, 2012, when the USCIS Customer Assistance Office at 1– Receipt Notice (Form I–797) only if you automatic extension of EADs expires, 800–357–2099. The USCIS Customer have an automatically extended EAD; employers must reverify the employee’s Assistance Office accepts calls in (4) A copy of your Form I–821 employment authorization in Section 3. English and Spanish only. Employers Approval Notice (Form I–797) for this may also call the Department of Justice designation; and If I am an employer enrolled in E-Verify, (5) If there is an automatic extension what do I do when I receive a ‘‘Work (DOJ) Office of Special Counsel for Immigration-Related Unfair of work authorization, a copy of the fact Authorization Documents Expiring’’ sheet from the USCIS TPS Web site that alert for an automatically extended Employment Practices (OSC) Employer Hotline at 1–800–255–8155. provides information on the automatic EAD? extension. If you are an employer who Note to Employees Check with the state or local agency participates in E-Verify, you will receive Employees or applicants may call the regarding which document(s) the agency a ‘‘Work Authorization Documents DOJ OSC Worker Information Hotline at will accept.
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Some benefit-granting agencies use aliens having no nationality who last eligibility, please visit the TPS Web the USCIS Systematic Alien Verification habitually resided in Sudan) with TPS page at http://www.uscis.gov/tps. You for Entitlements Program (SAVE) to to re-register and to apply for an can find specific information about this verify the current immigration status of extension of their Employment extension and about TPS for Sudan by applicants for public benefits. If such an Authorization Documents (EADs) with selecting ‘‘TPS Designated Country— agency has denied your application U.S. Citizenship and Immigration Sudan’’ from the menu on the left of the based solely or in part on a SAVE Services (USCIS). Re-registration is TPS Web page. From the Sudan page, response following completion of all limited to persons who previously you can select the Sudan TPS Questions required SAVE verification steps, the registered for TPS under the designation & Answers Section from the menu on agency must offer you the opportunity of Sudan and whose applications have the right for further information. to appeal the decision in accordance been granted or remain pending. Certain Additionally, information about TPS for with the agency’s procedures. If the nationals of Sudan (or aliens having no South Sudan can be found at the USCIS agency has completed all SAVE nationality who last habitually resided TPS Web page under the subheading verification and you do not believe the in Sudan) who have not previously ‘‘South Sudan.’’ response is correct, you may make an applied for TPS may be eligible to apply • You can also contact the TPS Info Pass appointment for an in-person under the late initial registration Operations Program Manager at Status interview at a local USCIS office. provisions. and Family Branch, Service Center Detailed information on how to make USCIS will issue new EADs with a Operations Directorate, U.S. Citizenship corrections, make an appointment, or May 2, 2013 expiration date to eligible and Immigration Services, Department submit a written request can be found Sudanese TPS beneficiaries who timely of Homeland Security, 20 Massachusetts at the SAVE Web site at http:// re-register and apply for EADs under Avenue, NW., Washington, DC 20529– www.uscis.gov/save, then by choosing this extension. Given the timeframes 2060; or by phone at (202) 272–1533 ‘‘How to Correct Your Records’’ from involved with processing TPS re- (this is not a toll-free number). the menu on the right. registration applications, DHS Note: The phone number provided here is [FR Doc. 2011–26537 Filed 10–12–11; 8:45 am] recognizes that all re-registrants may not solely for questions regarding this TPS BILLING CODE 9111–97–P receive new EADs until after their notice. It is not for individual case status current EADs expire on November 2, inquiries. 2011. Accordingly, this Notice • Applicants seeking information DEPARTMENT OF HOMELAND automatically extends the validity of about the status of their individual cases SECURITY EADs issued under the TPS designation can check Case Status Online available of Sudan for 6 months, through May 2, at the USCIS Web site at http:// Citizenship and Immigration Services 2012, and explains how TPS www.uscis.gov, or call the USCIS beneficiaries and their employers may [CIS No. 2512–11; DHS Docket No. USCIS– National Customer Service Center at 1– 2011–0013] determine which EADs are 800–375–5283 (TTY 1–800–767–1833). automatically extended and how the • Further information will also be RIN 1615–ZB07 extension affects employment eligibility available at local USCIS offices upon verification (Form I–9 and E–Verify) publication of this Notice. Extension of the Designation of Sudan processes. for Temporary Protected Status and In a separate Federal Register Notice SUPPLEMENTARY INFORMATION: Automatic Extension of Employment issued on October 13, 2011, the Abbreviations and Terms Used in This Authorization Documentation for Secretary designated the newly formed Document Sudanese TPS Beneficiaries Republic of South Sudan for TPS. Some CPA—Comprehensive Peace Agreement. individuals who are TPS beneficiaries AGENCY: U.S. Citizenship and DHS—Department of Homeland under the current designation of Sudan Immigration Services, Department of Security. Homeland Security. may now be nationals of South Sudan, DOS—Department of State. calling into question their continued ACTION: Notice. EAD—Employment Authorization eligibility for TPS under the Sudan Document. SUMMARY: This Notice announces that designation. These individuals may, Government—U.S. Government. the Secretary of Homeland Security however, now qualify for TPS under GOS—Government of Sudan. (Secretary) has extended the designation South Sudan. The South Sudan Notice INA—Immigration and Nationality Act. of Sudan for temporary protected status sets forth regular procedures and special JEM—Justice & Equality Movement. (TPS) for 18 months from its current procedures necessary for nationals of NCP—National Congress Party. expiration date of November 2, 2011 South Sudan (or aliens having no OSC—U.S. Department of Justice, Office through May 2, 2013. The Secretary has nationality who last habitually resided of Special Counsel for Immigration- determined that an extension is in the region that is now South Sudan) Related Unfair Employment Practices. warranted because the conditions in to register and to apply for TPS and Secretary—Secretary of Homeland Sudan that prompted the TPS EADs with USCIS. Security. designation continue to be met. There DATES: The 18-month extension of the South Sudan—Republic of South continues to be a substantial, but TPS designation of Sudan is effective Sudan. temporary, disruption of living November 3, 2011, and will remain in SPLM—Sudan People’s Liberation conditions in Sudan based upon effect through May 2, 2013. The 180-day Movement. ongoing armed conflict and re-registration period begins October 13, SPLM/A—Sudan People’s Liberation extraordinary and temporary conditions 2011, and will remain in effect until Movement/Army. in that country that prevent Sudanese April 10, 2012. TPS—Temporary Protected Status. who now have TPS from returning in FOR FURTHER INFORMATION: USAID—U.S. Agency for International safety. • For further information on TPS, Development. This Notice also sets forth procedures including guidance on the application USCIS—U.S. Citizenship and necessary for nationals of Sudan (or process and additional information on Immigration Services.
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What is temporary protected status foreign state (or part thereof) for TPS.1 referendum results indicating (TPS)? The Secretary may then grant TPS to approximately 98 percent of registered eligible nationals of that foreign state (or South Sudanese voted for secession, the • TPS is an immigration status aliens having no nationality who last new nation of South Sudan was granted to eligible nationals of a country habitually resided in that state). See INA officially created on July 9, 2011. designated for TPS under the Act (or to sec. 244(a)(1)(A), 8 U.S.C. While the formal armed conflict persons without nationality who last 1254a(a)(1)(A). between the north and south has ended, habitually resided in the designated At least 60 days before the expiration the violence in Sudan and South Sudan country). of a country’s TPS designation or continues. The challenges of • During the TPS designation period, extension, the Secretary, after partitioning the country have created TPS beneficiaries are eligible to remain consultation with appropriate new conflicts and complicated existing in the United States and may obtain Government agencies, must review the disputes between the north and south. work authorization, so long as they conditions in a foreign state designated Additionally, several groups, including continue to meet the requirements of for TPS to determine whether the numerous nonaligned Sudanese TPS. conditions for the TPS designation militias, threaten the long-term security • The granting of TPS does not lead continue to be met. See INA sec. of the region. to permanent resident status. 244(b)(3)(A), 8 U.S.C. 1254a(b)(3)(A). If In spite of milestone • When the Secretary of Homeland the Secretary determines that a foreign accomplishments under the CPA, Security (Secretary) terminates a state continues to meet the conditions serious impediments to the peace country’s TPS designation, beneficiaries for TPS designation, the designation is process remain and the civilian return to the same immigration status extended for an additional 6 months (or population continues to suffer harm they maintained before TPS (unless that in the Secretary’s discretion for 12 or 18 related to ongoing conflict in various status has since expired or been months). See INA sec. 244(b)(3)(C), 8 parts of Sudan. Contentious issues terminated) or to any other lawfully U.S.C. 1254a(b)(3)(C). If the Secretary between Sudan and South Sudan obtained immigration status they determines that the foreign state no remain to be negotiated, including received while registered for TPS. longer meets the conditions for TPS demarcation of the border, the citizenship status of displaced persons, When was Sudan designated for TPS? designation, the Secretary must terminate the designation. See INA sec. and the sharing of vital natural On November 4, 1997, the Attorney 244(b)(3)(B) of the Act, 8 U.S.C. resources, such as Nile River water and General designated Sudan for TPS based 1254a(b)(3)(B). oil reserves in South Sudan. The failure on an ongoing armed conflict and to formally demobilize the 180,000 Why is the Secretary extending the TPS extraordinary and temporary conditions soldiers from both Sudan and South designation for Sudan through May 2, within that country. See 62 FR 59737; Sudan as required by the CPA is of 2013? section 244(a)(b)(1)(A), (C) of the further concern. As of early 2011, only about 400 soldiers across the entire Immigration and Nationality Act (INA), Over the past year, the Department of country have completed the 8 U.S.C. 1254a(b)(1)(A), (C). Following Homeland Security (DHS) and the Department of State (DOS) have demobilization process. the initial designation of Sudan for TPS In Darfur, fighting between continued to review conditions in in 1997, the Attorney General and, later, government and rebel forces continues Sudan. Based on this review and after the Secretary have extended TPS and/or and has caused the widespread consulting with DOS, the Secretary has redesignated Sudan for TPS a total of 12 displacement of civilians. The CPA does determined that an 18-month extension times, including this extension. See 74 not cover the Darfur region of western is warranted because the armed conflict FR 69355 (Dec. 31, 2009) (describing the Sudan. Despite numerous attempts to is ongoing, although there have been a complete history of Sudan TPS negotiate peace between government extensions and redesignations). In the few improvements, and the forces and the various amalgamations of 2004 redesignation of Sudan, the extraordinary and temporary conditions militia groups, conflict in Darfur is Secretary established October 7, 2004, that prompted the October 7, 2004 ongoing. In 2003, two rebel groups, the as the date by which TPS Sudan redesignation persist. SPLM and the Justice and Equality applicants must demonstrate that they Sudan’s 22-year civil war formally Movement (JEM), led an insurrection have been continuously residing and ended in 2005 with the signing of the against the Government of Sudan (GOS). continuously physically present in the Comprehensive Peace Agreement (CPA) In response, the GOS reportedly armed United States. 69 FR 60168 (Oct. 7, between the north’s Government of local rival tribes and militia known 2004). The last extension of TPS for Sudan in Khartoum and its ruling collectively as the ‘‘Janjaweed.’’ Sudan was announced on December 31, National Congress Party (NCP) and the According to U.S. Government reports, 2009, based on the Secretary’s south’s Sudan People’s Liberation attacks on the civilian population by the determination that the conditions Movement/Army (SPLM/A). Sudan Janjaweed, often with the direct support warranting the designation continued to accomplished two key requirements of of the GOS, have led to the deaths of be met. There has been no change to the the CPA by holding national and local hundreds of thousands of people in October 7, 2004 ‘‘continuous residence’’ elections in April 2010 and holding the Darfur. The UN estimated in 2006 that and ‘‘continuous physical presence’’ referendum on independence for South 200,000 persons had died as a result of date requirements since 2004. Sudan in January 2011. Following the conflict and that by 2008 an additional 100,000 may have died. An What authority does the Secretary of 1 As of March 1, 2003, in accordance with section Homeland Security have to extend the 1517 of title XV of the Homeland Security Act of estimated 1.9 million civilians have designation of Sudan for TPS? 2002 (HSA), Public Law 107–296, 116 Stat. 2135, been internally displaced, and any reference to the Attorney General in a provision approximately 280,000 refugees have Section 244(b)(1) of the INA, 8 U.S.C. of the INA describing functions transferred from the fled to neighboring Chad. Fighting in 1254a(b)(1), authorizes the Secretary, Department of Justice to the Department of Homeland Security ‘‘shall be deemed to refer to the Darfur includes armed clashes between after consultation with appropriate Secretary’’ of Homeland Security. See 6 U.S.C. 557 government and rebel forces, among Government agencies, to designate a (codifying HSA, tit. XV, sec. 1517). rebel factions, and between armed
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ethnic Arab groups. In the first half of workers and GOS restrictions on the • There are approximately 340 2010, armed clashes resulted in the operations of humanitarian individuals who currently have TPS highest number of deaths in the Darfur organizations. under the designation of Sudan. DHS conflict since 2008, with armed clashes Sudan is the largest humanitarian aid estimates that the combined total of occurring in all three Darfur states. In recipient in the world, with the Sudanese and South Sudanese who will more than seven years of the Darfur international community providing be eligible for TPS under the South conflict, a series of periodic ceasefires approximately $1.3 billion in Sudan designation and the extension of between the GOS and various rebel humanitarian assistance in 2009. TPS for Sudan is approximately 340. groups have all subsequently quickly Reports from the U.S. Agency for DHS recognizes that the actual number fallen apart. Despite formal International Development (USAID) and of re-registering Sudan TPS applicants international efforts to negotiate peace the World Food Programme indicate may be lower than 340, because some of within the region, the peace process has that in addition to coping with the those 340 individuals may apply and floundered. In 2009 through early 2011, effects of conflict and displacement, the qualify for registration under the new fighting between the GOS and various country continues to struggle with South Sudan TPS designation. rebel groups escalated. perennial environmental shocks, such Notice of Extension of the TPS The transitional areas of Abyei, Blue as flooding and droughts, which further Designation of Sudan Nile and Southern Kordorfan, located compound the country’s vulnerabilities along the contentious north-south and have led to food shortages and By the authority vested in me as border, continue to be flashpoints for budget constraints. U.S. Government Secretary of Homeland Security under positional violence. Clashes that began reports indicate that food insecurity in section 244 of the INA, 8 U.S.C. 1254a, on June 6 in Southern Kordofan State Darfur is considered an emergency I have determined, after consultation between the Sudanese Armed Forces concern. In eastern Sudan, chronic with the appropriate Government (SAF) and forces loyal to the Sudan poverty and development needs persist agencies, that the conditions that People’s Liberation Army (SPLA) throughout the region, which has prompted the redesignation of Sudan for displaced up to 73,000 people, experienced slow recovery following temporary protected status (TPS) on according to unconfirmed estimates. decades of conflict. October 7, 2004 continue to be met. See Violations of human rights and While certain provisions of the 2005 INA sec. 244(b)(3)(A) of the Act, 8 international humanitarian law have CPA have generally been upheld, many U.S.C. 1254a(b)(3)(A). On the basis of been reported in the state, and contentious issues remain unresolved this determination, I am extending the humanitarian access is limited. There is and present potential for conflict. The TPS designation of Sudan for 18 months potential for violence also to flare in transitional areas along the Sudan-South from its current expiration on November Blue Nile. On May 21, the Sudan Armed Sudan border remain flashpoints for 2, 2011 through May 2, 2013. Forces took over the Abyei Area, a potential violence. Violence and disputed territory in the middle of what Janet Napolitano, ensuing population displacement, was then Sudan, displacing an Secretary. compounded by environmental and estimated 100,000 people. Required Application Forms and While the northern and eastern parts economic factors, have created one of of Sudan have not recently experienced the worst humanitarian crises in the Application Fees To Register or Re- the same level of violence that has world. Despite encouraging incidents of Register for TPS progress toward peace, Sudan’s overall plagued Darfur, the disputed Abyei To Register or Re-Register for TPS for internal security and political stability region, South Kordofan, and Southern Sudan, an Applicant Must Submit Sudan, human rights abuses continue remain fragile and unpredictable. 1. Application for Temporary throughout the country. For example, Based upon this review and after consultation with appropriate Protected Status, Form I–821, numerous persons were detained • following demonstrations in January Government agencies, the Secretary You only need to pay the Form I– 2011. finds that: 821 application fee if you are filing an In eastern Sudan, the political and • The conditions that prompted the application for late initial registration. security situation remained relatively October 7, 2004 redesignation of Sudan See 8 CFR 244.2(f)(2) and information calm, due, in part, to the Eastern Sudan for TPS continue to be met. See INA sec. on late initial filing on the USCIS Web Peace Agreement between GOS and 244(b)(3)(A), 8 U.S.C. 1254a(b)(3)(A). site at http://www.uscis.gov under rebels from the Eastern Front. A number • There continues to be an ongoing ‘‘Temporary Protected Status for of issues have not been fully addressed, armed conflict and extraordinary and Sudan.’’ however, including growing poverty, temporary conditions in Sudan that • You do not need to pay the Form economic marginalization, security prevent Sudanese nationals from I–821 fee for a re-registration; vulnerabilities, as well as the Eastern returning to Sudan in safety. See INA and Front splitting into three groups. sec. 244(b)(1)(A), (C), 8 U.S.C. 2. Application for Employment A myriad of factors contribute to the 1254a(b)(1)(A), (C). Authorization, Form I–765. ongoing humanitarian crisis in Sudan. • It is not contrary to the national • If you are applying for re- Sporadic eruptions of political and interest of the United States to permit registration, you must pay the Form I– intercommunal violence caused civilian Sudanese (and persons who have no 765 application fee only if you want an deaths, continued displacement of the nationality who last habitually resided Employment Authorization Document population, and general instability. in Sudan) who meet the eligibility (EAD). Natural disasters have compounded the requirements of TPS to remain in the • If you are applying for late initial harm suffered by the population in United States temporarily. See INA sec. registration and want an EAD, you must some regions. Drought and flooding 244(b)(1)(C), 8 U.S.C. 1254a(b)(1)(C). pay the Form I–765 fee only if you are continue to increase food insecurity and • The designation of Sudan for TPS age 14 through 65. No EAD fee is concerns of malnutrition. Delivery of should be extended for an additional 18- required if you are under the age of 14 humanitarian aid continues to be month period. See INA sec. 244(b)(3)(C), or over the age of 65 and applying for threatened by attacks against aid 8 U.S.C. 1254a(b)(3)(C). late initial registration.
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• You do not pay the Form I–765 fee submit a biometric services fee. As their fee waiver requests to have time to if you are not requesting an EAD. previously stated, if you are unable to pay the appropriate fees and refile their You must submit both completed pay, you may apply for a biometrics fee applications before the re-registration application forms together. If you are waiver by completing a Form I–912, or deadline. If, however, an applicant unable to pay, you may apply for a personal letter requesting a fee waiver, receives a denial of his or her fee waiver application and/or biometrics fee and providing satisfactory supporting request and is unable to refile with the waivers by completing a Request for Fee documentation. For more information appropriate fees by the re-registration Waiver (Form I–912) or submitting a on the biometric services fee, please deadline, the applicant may still refile personal letter requesting a fee waiver, visit the USCIS Web site at http:// his or her applications. This situation and providing satisfactory supporting www.uscis.gov. If necessary, you may be will constitute good cause for late re- documentation. For more information required to visit an Application Support registration. See 8 CFR 244.17. on the application forms and fees for Center to have your biometrics However, applicants are urged to refile TPS, please visit the USCIS TPS Web captured. within 45 days of the date on their page at http://www.uscis.gov/tps and USCIS fee waiver denial notice if at all Refiling After Receiving a Denial of a click on ‘‘Temporary Protected Status possible. For more information on good Fee Waiver Request for Sudan.’’ Fees for Form I–821, Form cause for late re-registration, please look I–765, and biometric services are also USCIS urges all re-registering at the Questions & Answers for Sudan described in 8 CFR 103.7(b). applicants to file as soon as possible TPS found on the USCIS TPS Web page within the 180-day re-registration for Sudan. Biometric Services Fee period so that USCIS can promptly Biometrics (such as fingerprints) are process the applications and issue Mailing Information required for all applicants 14 years of EADs. Filing early will also allow those Mail your application for TPS to the age or older. Those applicants must applicants who may receive denials of proper address in Table 1:
TABLE 1–MAILING ADDRESSES
If Mail to
You are applying for re-registration through the U.S. Postal Service ..... USCIS, P.O. Box 8677, Chicago, IL 60680–8677. You are applying for the first time as a late initial registrant through the USCIS, P.O. Box 8677, Chicago, IL 60680–8677. U.S. Postal Service. You are using a Non-U.S. Postal Service delivery service for either re- USCIS, Attn: TPS Sudan, 131 S. Dearborn 3rd Floor, Chicago, IL registration or first-time late initial registration. 60603–5517.
E-Filing November 2, 2011. These EADs must employment authorization for Form I–9 You cannot electronically file your also bear the notation ‘‘A–12’’ or ‘‘C–19’’ through May 2, 2012 (see the subsection application when re-registering or on the face of the card under below titled ‘‘How do my employer and applying for late initial registration for ‘‘Category.’’ I complete Form I–9 (i.e., verification) using an automatically extended EAD Sudan TPS. Please mail your When hired, what documentation may I for a new job?’’ for further information). application to the mailing address listed show to my employer as proof of To minimize confusion over this in Table 1 above. employment authorization and identity extension at the time of hire, you may when completing Employment Employment Authorization Document also show a copy of this Federal Eligibility Verification, Form I–9? (EAD) Register notice regarding the automatic May I request an interim EAD at my You can find a list of acceptable extension of employment authorization local USCIS office? document choices on page 5 of the through May 2, 2012 to your employer. Employment Eligibility Verification, As an alternative to presenting your No. USCIS will not issue interim Form I–9. Employers are required to automatically extended EAD, you may EADs to TPS applicants and re- verify the identity and employment choose to present any other acceptable registrants at local offices. authorization of all new employees by document from List A, or List B plus Am I eligible to receive an automatic 6- using Form I–9. Within three days of List C. month extension of my current EAD hire, an employee must present proof of What documentation may I show my from November 2, 2011 through May 2, identity and employment authorization employer if I am already employed but 2012? to his or her employer. my current TPS–related EAD is set to You may present any document from You will receive an automatic 6- expire? month extension of your EAD if you: List A (reflecting both your identity and • Are a national of Sudan, an alien employment authorization), or one You must present any document from having no nationality who last document from List B (reflecting List A or any document from List C on habitually resided in Sudan, or a new identity) together with one document Form I–9 to reverify employment national of South Sudan who received from List C (reflecting employment authorization. Employers are required to an EAD under the last extension of TPS authorization). An EAD is an acceptable reverify on Form I–9 the employment for Sudan; document under ‘‘List A.’’ authorization of current employees • Received an EAD under the last If you received a 6-month automatic upon the expiration of a TPS-related extension of TPS for Sudan; and extension of your EAD by virtue of this EAD. • Have not had TPS withdrawn or Federal Register notice, you may choose If you received a 6-month automatic denied. to present your automatically extended extension of your EAD by virtue of this This automatic extension is limited to EAD, as described above, to your Federal Register notice, your employer EADs with an expiration date of employer as proof of identity and does not need to reverify until after May
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2, 2012. However, you and your What corrections should my employer at request documentation that does not employer do need to make corrections my current job and I make to Form I– appear on the Form I–9. Therefore, to the employment authorization 9 if my EAD has been automatically employers may not request proof of expiration dates in Section 1 and extended? Sudanese or South Sudanese citizenship Section 2 of the Form I–9 (see the If you are an existing employee who when completing Form I–9. If presented with EADs that have been automatically subsection below titled ‘‘What presented a TPS EAD that was valid extended pursuant to this Federal corrections should my employer at my when you first started your job, but that Register notice or EADs that are current job and I make to Form I–9 if my EAD has now been automatically unexpired on their face, employers EAD has been automatically extended?’’ extended, you and your employer should accept such EADs as valid ‘‘List for further information). In addition, should correct your previously A’’ documents so long as the EADs you may also show this Federal Register completed Form I–9 as follows: reasonably appear to be genuine and to notice to your employer to avoid (1) For Section 1, you should: relate to the employee. See below for confusion about whether or not your a. Draw a line through the expiration important information about your rights expired TPS-related document is date in the second space; acceptable. After May 2, 2012, when the if your employer rejects lawful b. Write ‘‘May 2, 2012’’ above the documentation, requires additional automatic extension expires, your previous date; employer must reverify your documentation, or otherwise c. Write ‘‘TPS Ext.’’ in the margin of discriminates against you because of employment authorization. You may Section 1; and show any document from List A or List your citizenship or immigration status, a. Initial and date the correction in the or national origin. C on Form I–9 to satisfy this margin of Section 1. reverification requirement. (2) For Section 2, employers should: Note to All Employers What happens after May 2, 2012 for a. Draw a line through the expiration Employers are reminded that the laws purposes of employment authorization? date written in Section 2; requiring employment eligibility b. Write ‘‘May 2, 2012’’ above the After May 2, 2012, employers may not verification and prohibiting unfair previous date; immigration-related employment accept the EADs that were automatically c. Write ‘‘TPS Ext.’’ in the margin of practices remain in full force. This extended by this Federal Register Section 2; and notice does not supersede or in any way notice. However, USCIS will issue new d. Initial and date the correction in limit applicable employment EADs to TPS re-registrants. These EADs the margin of Section 2. verification rules and policy guidance, will have an expiration date of May 2, After May 2, 2012, when the including those rules setting forth 2013 and can be presented to your automatic extension of EADs expires, reverification requirements. For employer as proof of employment employers must reverify the employee’s questions, employers may call the authorization and identity. The EAD employment authorization in Section 3. USCIS Customer Assistance Office at 1– will bear the notation ‘‘A–12’’ or ‘‘C–19’’ 800–357–2099. The USCIS Customer on the face of the card under If I am an employer enrolled in E-Verify, what do I do when I receive a ‘‘Work Assistance Office accepts calls in ‘‘Category.’’ Alternatively, you may English and Spanish only. Employers choose to present any other legally Authorization Documents Expiring’’ alert for an automatically extended may also call the Department of Justice acceptable document or combination of (DOJ) Office of Special Counsel for EAD? documents listed on the Form I–9 to Immigration-Related Unfair prove identity and employment If you are an employer who Employment Practices (OSC) Employer authorization. participates in E-Verify, you will receive Hotline at 1–800–255–8155. a ‘‘Work Authorization Documents How do my employer and I complete Note to Employees Form I–9 (i.e., Verification) using an Expiring’’ case alert when a TPS automatically extended EAD for a new beneficiary’s EAD is about to expire. Employees or applicants may call the job? Usually, this message is an alert to DOJ OSC Worker Information Hotline at complete Section 3 of Form I–9 to 1–800–255–7688 for information When using an automatically reverify an employee’s employment regarding employment discrimination extended EAD to fill out Form I–9 for authorization. For existing employees based upon citizenship or immigration a new job prior to May 2, 2012, you and with TPS EADs that have been status, or national origin, unfair your employer should do the following: automatically extended, employers documentary practices related to the (1) For Section 1, you should: should disregard the E-Verify case alert Form I–9, or discriminatory practices a. Check ‘‘An alien authorized to and follow the instructions above related to E-Verify. Employers must work;’’ explaining how to correct Form I–9. accept any document or combination of b. Write your alien number (A- After May 2, 2012, employment documents acceptable for Form I–9 number) in the first space (your EAD or authorization needs to be reverified in completion if the documentation other document from DHS will have Section 3. You should never use E– reasonably appears to be genuine and to your A-number printed on it); and Verify for reverification. relate to the employee. Employers may not require extra or additional c. Write the automatic extension date Can my employer require that I produce in the second space. documentation beyond what is required any other documentation to prove my for Form I–9 completion. Further, (2) For Section 2, employers should: status, such as proof of my Sudanese or employees who receive an initial a. Record the document title; South Sudanese Citizenship? mismatch via E-Verify must be given an b. Record the document number; and No. When completing the Form I–9, opportunity to challenge the mismatch, c. Record the automatically extended employers must accept any and employers are prohibited from EAD expiration date. documentation that appears on the lists taking adverse action against such After May 2, 2012, employers must of acceptable documentation, and that employees based on the initial reverify the employee’s employment reasonably appears to be genuine and mismatch unless and until E-Verify authorization in Section 3 of Form I–9. that relates to you. Employers may not returns a final nonconfirmation. The
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Hotline accepts calls in multiple ‘‘How to Correct Your Records’’ from 7th Street, SW., Room 10276, languages. Additional information is the menu on the right. Washington, DC 20410–0500. available on the OSC Web site at [FR Doc. 2011–26538 Filed 10–12–11; 8:45 am] 2. Electronic Submission of http://www.justice.gov/crt/osc/. BILLING CODE 9111–97–P Comments. Interested persons may submit comments electronically through Note Regarding Federal, State, and the Federal eRulemaking Portal at Local Government Agencies (Such as http://www.regulations.gov. HUD Departments of Motor Vehicles) DEPARTMENT OF HOUSING AND strongly encourages commenters to State and local government agencies URBAN DEVELOPMENT submit comments electronically. are permitted to create their own Electronic submission of comments [Docket No. FR–5526–N–01] guidelines when granting certain allows the commenter maximum time to benefits, such as a driver’s license or an Public Housing Assessment System prepare and submit a comment, ensures identification card. Each state may have (PHAS): Proposed Physical Condition timely receipt by HUD, and enables different laws, requirements, and Interim Scoring Notice HUD to make them immediately determinations about what documents available to the public. Comments you need to provide to prove eligibility AGENCY: Office of the Assistant submitted electronically through the for certain benefits. If you are applying Secretary for Public and Indian http://www.regulations.gov Web site can for a state or local government benefit, Housing, HUD. be viewed by other commenters and you may need to provide the state or ACTION: Notice. interested members of the public. local government agency with Commenters should follow the documents that show you are a TPS SUMMARY: This notice provides instructions provided on that site to beneficiary and/or show you are additional information to public submit comments electronically. authorized to work based on TPS. housing agencies (PHAs) and members Note: To receive consideration as public Examples are: of the public about HUD’s process for comments, comments must be submitted (1) Your expired EAD that has been issuing scores under the Physical through one of the two methods specified automatically extended, or your EAD Condition Indicator of the PHAS under above. Again, all submissions must refer to that has a valid expiration date; the PHAS Physical Condition Scoring the docket number and title of the rule. (2) A copy of this Federal Register Process notice published on February No Facsimile Comments. Facsimile notice if your EAD is automatically 23, 2011. This notice provides (FAX) comments are not acceptable. extended under this notice; information to the public about the Public Inspection of Public (3) A copy of your Application for implementation of a point loss cap in Comments. All properly submitted Temporary Protected Status, Form I–821 the scoring process. This notice also comments and communications Receipt Notice (Form I–797) for this re- proposes changes to definitions in the submitted to HUD will be available for registration; Dictionary of Deficiency Definitions that public inspection and copying between (4) A copy of your past or current is an appendix to the PHAS notice on 8 a.m. and 5 p.m. weekdays at the above Form I–821 Approval Notice (Form I– the physical condition scoring process. address. Due to security measures at the 797), if you receive one from USCIS; These proposed changes would affect HUD Headquarters building, an advance and the physical condition inspections appointment to review the public (5) If there is an automatic extension process for both multifamily and public comments must be scheduled by calling of work authorization, a copy of the fact housing properties. This notice also the Regulations Division at 202–402– sheet from the USCIS TPS Web site that provides information about the updated 3055 (this is not a toll-free number). provides information on the automatic inspection software that will be used by Individuals with speech or hearing extension. inspector when conducting inspection. impairments may access this number Check with the state or local agency The changes made in this notice are via TTY by calling the Federal Relay regarding which document(s) the agency discussed in the Supplementary Service, toll-free, at 800–877–8339. will accept. Information section below. Copies of all comments submitted are Some benefit-granting agencies use DATES: Comment Due Date: November available for inspection and the USCIS Systematic Alien Verification 14, 2011. downloading at http:// for Entitlements Program (SAVE) to ADDRESSES: Interested persons are www.regulations.gov. verify the current immigration status of invited to submit comments on this FOR FURTHER INFORMATION CONTACT: applicants for public benefits. If such an notice and the revised Definitions to be Claudia J. Yarus, Department of Housing agency has denied your application included in the Dictionary of Deficiency and Urban Development, Office of based solely or in part on a SAVE Definitions, attached to this notice as an Public and Indian Housing, Real Estate response following completion of all appendix, to the Regulations Division, Assessment Center (REAC), 550 12th required SAVE verification steps, the Office of General Counsel, Department Street, SW., Suite 100, Washington, DC agency must offer you the opportunity of Housing and Urban Development, 20410 at 202–475–8830 (this is not a to appeal the decision in accordance 451 7th Street, SW., Room 10276, toll-free number). Persons with hearing with the agency’s procedures. If the Washington, DC 20410–0500. or speech impairments may access this agency has completed all SAVE Communications must refer to the above number through TTY by calling the toll- verification and you do not believe the docket number and title. There are two free Federal Relay Service at 800–877– response is correct, you may make an methods for submitting public 8339. Info Pass appointment for an in-person comments. All submissions must refer SUPPLEMENTARY INFORMATION: interview at a local USCIS office. to the above docket number and title. Detailed information on how to make 1. Submission of Comments by Mail. I. Purpose of This Notice corrections, make an appointment, or Comments may be submitted by mail to The purpose of this notice is to submit a written request can be found the Regulations Division, Office of describe the physical condition scoring at the SAVE Web site at http:// General Counsel, Department of process for the PHAS physical condition www.uscis.gov/save, then by choosing Housing and Urban Development, 451 indicator. This notice is different from,
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and supersedes, the February 23, 2011 2. System Development and Changes to methodology, along with HUD’s internal notice in that it: (1) Describes the PASS and the Dictionary of Deficiency analysis of the impact of the proposed change to the scoring process through Definitions change in scoring, has led to the the implementation of a point loss cap; From 2004 to the present, HUD decision by HUD to add a point loss cap (2) proposes changes to certain conducted an ongoing deliberative to the physical inspection system. definitions in the Dictionary of process to develop an updated physical 4. DCD 4.0 Inspection Software Deficiency Definitions; and (3) describes inspection system, including an the updated inspection software that updated electronic system, that would The DCD 4.0 is an updated inspection will be used by inspectors when incorporate the proposed changes to the software that will replace the aging DCD conducting REAC inspections of HUD Dictionary of Deficiency Definitions as 2.3.3 software originally developed in insured and assisted properties. well as an additional equity principle. 1997. In addition to taking advantage of To that end, HUD utilized the advances in technology, the core II. Background information obtained from the earlier functionality of the inspection software consultations with industry groups. has been modified to improve data 1. Initial Changes to the Dictionary of collection. It employs a decision tree Deficiency Definitions Accordingly, the system development process began with the incorporation of model that replaces the selection-based Since 2001, when the conference the revised Dictionary of Definitions, model of recording observed report on that fiscal year’s which the industry and other HUD deficiencies. The inspection protocol remains unchanged, but the overall appropriations bill (H.R. Conf. Rep. stakeholders supported. The process system includes the changes made to 106–988) directed HUD to ‘‘assess the was furthered by repeated informal the Dictionary of Deficiency Definitions accuracy and effectiveness of the PHAS industry contacts from 2004 to the present, which demonstrated to HUD and the inclusion of a point loss cap system and to take whatever remedial determined at the inspectable area level. steps may be needed,’’ and to perform that these changes, while proposed in 2004, are still desired by the industry Incorporation of the revised a statistically valid test of PHAS, HUD definitions and point loss cap along has engaged in an extensive effort to and still address key areas of interest for the major actors. This repeated with the DCD 4.0 Inspection Software ensure that the dictionary of deficiency has led to an overall physical inspection definitions were responsive to industry confirmation has led HUD to conclude that the newly developed system should system broader in scope than what was concerns. HUD engaged a contractor, the proposed in the 2004 Federal Register Louis Berger group (the contractor) to incorporate the revised Dictionary of Definitions, as well as an additional Notice. As a result, HUD is once again perform the requested study; the principle into the scoring methodology publishing proposed revisions to the contractor produced a final report in and an updated inspection software Dictionary of Definitions for comment June, 2001, identifying 47 definitions in tool. along with the new proposed change of the Dictionary of Deficiency Definitions, a point loss cap. The proposed revisions published as Appendix 2 to the Public 3. Point Loss Cap to the Dictionary of Deficiency Housing Assessment System Physical One of the major changes made in this Definitions are included as Appendix 1 Condition Scoring Process notice notice is the addition of a point loss cap. to this notice. published on November 26, 2001 (66 FR With the point loss cap, the scoring III. The Revised Physical Inspection 59084) and recommended modifications methodology would take into account Scoring Process and minor changes to each. the disproportionate effect on scoring that a single deficiency can have when Substantive revisions to the physical From 2001 to 2002, HUD and the scoring process proposed in this notice contractor met with representatives there are relatively few buildings or units that are inspected in a project. include: from the multifamily industry, the • Until this point, the scoring A definition is added for ‘‘point loss public housing industry, and HUD’s cap’’ following the definition for own multifamily and public housing methodology has not accounted for this disproportionate effect in the physical ‘‘normalized sub-area weight.’’ staff to conduct informal discussions on • inspections scores. This is an issue that Under section 3, ‘‘equity proposed changes to various definitions has been the subject of repeated principles,’’ a paragraph is added on the in the Dictionary of Deficiency comments. These comments have been point loss cap. Definitions. It was emphasized to the made consistently in the appeals of • Under section 5, ‘‘health and safety participants that HUD was not seeking PASS scores under the original PHAS deficiencies,’’ language is added their opinions as a group or any official Rule, in informal communications with reflecting both remediation and action recommendations. Informed by these industry, and during industry to abate the deficiency; language discussions, HUD then drafted the conferences and meetings in which relating to a deadline for transmittal of revisions to the definitions it proposed HUD staff are represented and they the deficiency report is removed. in a 2004 Federal Register Notice for continue to be made by the industry • Under the same section, it is public comment (see 69 FR 12474, members. In order to lessen this impact, specified that if there are smoke detector March 16, 2004). HUD developed a mechanism to cap the deficiencies, the physical inspection number of points that would be score will include an asterisk. The definitions for which changes • were proposed were those that had been deducted from the project score for any Under section 7, ‘‘scoring using identified as causing the greatest one deficiency. weighted averages,’’ language is added related to the point loss cap. inconsistency among contract This mechanism, a point loss cap set • Under section 8, ‘‘essential weights inspectors. These proposed changes at the inspectable area level, was developed in an effort to more precisely and levels,’’ the point loss cap is added would affect the physical condition account for the impact of a single to the bulleted list. inspection process for both multifamily deficiency on a property score. These • Under section 9, the title is revised and public housing properties. long standing comments on this to ‘‘normalized area weights’’ and the component of the current scoring description of the calculation is revised.
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• Under section 12, the examples of to reflect their relative importance and Note that dividing by a building’s physical condition score calculations are shown in the Item Weights and probability of being selected for are substantially revised. Criticality Levels tables. The tables refer inspection is the same as multiplying by • Section 13, ‘‘computing PHAS to the weight of each item as the the probability weight since the physical inspection scores,’’ is revised. nominal item weight, which is also probability weight is 1 divided by the • The examples of sampling weights known as the amenity weight. probability of being selected for for buildings in section 14 are revised. Normalized area weight represents inspection. The PHAS physical inspection weights used with area scores to Point loss cap is the maximum generates comprehensive results, calculate project-level scores. The number of points that a single including physical inspection scores weights are adjusted to reflect the deficiency can count against the overall reported at the project level; area level inspectable items actually present at the property score. The point loss cap for scores for each of the five physical time of the inspection. These weights each inspectable area is: inspection areas, as applicable; and are proportional, as follows: observations of deficiencies recorded • For dwelling units, the area score is the weighted average of sub-area scores Maximum point electronically by the inspector at the Inspectable area deduction for a time of the inspection. for each unit, weighted by the total of single deficiency item weights present for inspection in 1. Definitions each unit, which is referred to as the Site ...... 7.5 The following are the definitions of amenity weight. Building Exterior ...... 10.0 the terms used in the physical condition • For common areas, the area score is Building System ...... 10.0 scoring process: the weighted average of sub-area Common Areas ...... 10.0 Criticality means one of five levels common area scores weighted by the Dwelling Units ...... 5.0 that reflect the relative importance of total weights for items available for the deficiencies for an inspectable item. inspection (or amenity weight) in each Project is used synonymously with residential building common area or Appendix 1 lists all deficiencies with the term ‘‘property.’’ their designated criticality levels, which common building. Common buildings vary from 1 to 5, with 5 being the most refer to any inspectable building that Severity means one of three levels that critical. Based on the criticality level, contains no dwelling units. All common reflect the extent of damage associated each deficiency has an assigned value buildings are inspected. with each deficiency, with values • that is used in scoring. Those values are For building exteriors or building assigned as follows: as follows: systems, the area scores are weighted averages of sub-area scores. Severity level Value • Criticality Level Value For sites, the area score is calculated as follows: (1) The amenity 3 ...... 1.00 Critical ...... 5 5.00 weights found on a site, (2) minus 2 ...... 0.50 Very Important ...... 4 3.00 deductions for deficiencies, and (3) 1 ...... 0.25 Important ...... 3 2.25 normalized to a 100-point scale. Contributes ...... 2 1.25 Normalized sub-area weight means The Item Weights and Criticality Slight Contribution ...... 1 0.50 the weight used with sub-area scores to Levels tables show the severity levels compute an inspectable area score. that are possible for each deficiency. Based on the importance of the These weights are proportional: Based on the severity of each deficiency, deficiency as reflected by its criticality • For dwelling units, the item weight the score is reduced. Points deducted value, points are deducted from the of amenities available in the unit at the are calculated by multiplying the item project score. For example, a clogged time of inspection is the amenity weight by the values for criticality and drain in the kitchen is more critical than weight. severity, as described below. For a damaged surface on a countertop. • For common areas, the common specific definitions of each severity Therefore, more points will be deducted area amenity weight is divided by a level, see the Dictionary of Deficiency for a clogged drain than for a damaged building’s probability of being selected Definitions. surface. for inspection. All residential buildings Deficiencies refer to specific problems with common areas may not be selected Score means a number between 0 and that are recorded for inspectable items, for inspection; however, all buildings 100 that reflects the physical condition such as a hole in a wall or a damaged with common areas are used to of a project, inspectable area, or sub- refrigerator in the kitchen. determine the amenity weight. area. A property score includes both an Inspectable area means any of the five • For building exterior and building alphabetical and a numerical major components of the project: site, systems, the building exterior or component. The number represents an building exteriors, building systems, building system amenity weight is overall score for the basic physical common areas, and dwelling units. multiplied by the building’s size condition of a property, including Inspectable items refer to walls, (number of units) and then divided by points deducted for health and safety kitchens, bathrooms, and other features its probability of being selected for deficiencies other than those associated that are inspected in an inspectable inspection. with smoke detectors. The letter code area. The number of inspectable items • For the site, there is no sub-area specifically indicates whether health varies for each inspectable area, from 8 score. For each project, there is a single and safety deficiencies were detected, as to 17. Weights are assigned to each item site. shown in the chart below:
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Health and safety deficiencies No health and Life threatening Fire safety Physical inspection score alphanumeric codes safety defi- Non-life threat- (LT)/exigent ciencies ening (NLT) health and safety No smoke detec- Smoke detector (EHS) tor problems problems
a ...... X ...... X ...... a* ...... X ...... X b ...... X ...... X ...... b* ...... X ...... X c ...... X X ...... c* ...... X ...... X
To record a health or safety problem, mechanism ensures that no single A specific criticality level, with a letter is added to the project score (a, building or dwelling unit can affect the associated values as shown in that chart, b, or c) and to note that one or more overall score more than its is also assigned to each deficiency. The smoke detectors are inoperable or proportionate share of the whole. criticality level reflects the importance missing an asterisk (*) is added to the Configuration of project. The scoring of the deficiency relative to all other project score. The project score for methodology takes into account possible observable deficiencies for the properties with LT deficiencies will different numbers of units in buildings. inspectable area. have a ‘‘c’’ whether or not there also are To fairly score projects with different 5. Health and Safety Deficiencies NLT deficiencies. numbers of units in buildings, the area Sub-area means an area that will be scores are calculated for building The UPCS physical inspection inspected for all inspectable areas exteriors and systems by using weighted emphasizes health and safety (H&S) except the site. For example, the averages of the sub-area scores, where deficiencies because of their crucial building exterior for building ‘‘2’’ is a the weights are based on the number of impact on the well-being of residents. A sub-area of the building exterior area. units in each building and on the subset of H&S deficiencies is exigent Likewise, unit ‘‘5’’ would be a sub-area building’s probability of being selected health and safety (EHS) deficiencies. of the dwelling units area. Each for inspection. In addition, the These are life threatening (LT) and inspectable area for each building in a calculation for common areas includes require immediate action or remedy. property is treated as a sub-area. the amenities existing in the residential EHS deficiencies can substantially common areas and common buildings at reduce the overall project score. As 2. Scoring Protocol the time of inspection. noted in the definition for the word To generate accurate scores, the Differences between projects. The ‘‘score’’ in the Definitions section, all inspection protocol includes a scoring methodology also takes into H&S deficiencies are highlighted by the determination of the appropriate account that projects have different addition of a letter to the numeric score. relative weights of the various features and amenities. To ensure that The Item Weights and Criticality Levels components of the inspection; that is, the overall score reflects only items that tables list all H&S deficiencies with an which components are the most are present to be inspected, weights to LT designation for those that are EHS important, the next most important, and calculate area and project scores are deficiencies and an NLT designation for so on. For example, in the building adjusted depending on how many items those that are non-life threatening. The exterior area, a blocked or damaged fire are actually there to be inspected. LT and NLT designations apply only to escape is more important than a cracked Point loss cap. The scoring severity level 3 deficiencies. window, which is more important than methodology further takes into account To ensure prompt correction, remedy a broken light fixture. The Item Weights that a single deficiency can have or action to abate of H&S deficiencies, and Criticality Levels tables provide the disproportionate effects on scoring the inspector gives the project nominal weight of observable when there are relatively few buildings representative a deficiency report deficiencies by inspectable item for each or units that are inspected in a project. identifying every observed EHS area/sub-area. The Dictionary of To mitigate any disproportionate deficiency before the inspector leaves Deficiency Definitions provides a impact, the number of points deducted the site. The project representative definition for the severity of each from the project score for any one acknowledges receipt of the deficiency deficiency in each area/sub-area. deficiency is capped. Point loss caps are report by signature. HUD makes set at the inspectable area level. available to all PHAs an inspection 3. Equity Principles 4. Deficiency Definitions report that includes information about In addition to determining the all of the H&S deficiencies recorded by appropriate relative weights, During a physical inspection of a the inspector. The report shows: consideration is also given to several project, the inspector looks for • The number of H&S deficiencies issues concerning equity between deficiencies for each inspectable item (EHS and NLT) that the inspector properties so that scores fairly assess all within the inspectable areas, such as the observed; types of properties: walls (the inspectable item) of a • All observed smoke detector Proportionality. The scoring dwelling unit (the inspectable area). deficiencies; and methodology includes an important Based on the observed condition, the • A projection of the total number of control that does not allow any sub-area Dictionary of Deficiency Definitions H&S problems that the inspector scores to be negative. If a sub-area, such defines up to the three levels of severity potentially would see in an inspection as the building exterior for a given for each deficiency: Level 1 (minor), of all buildings and all units. building, has so many deficiencies that Level 2 (major), and Level 3 (severe). If there are smoke detector the sub-area score would be negative, The associated values are shown in the deficiencies, the physical conditions the score is set to zero. This control definition of ‘‘severity’’ in Section V.1. score will include an asterisk. However,
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problems with smoke detectors do not deficiencies for broken windows are to the other inspectable areas. The 15 currently affect the overall score. When recorded, only the most severe percent is redistributed by totaling the there is an asterisk indicating that the deficiency observed (or one of the most weights of other inspectable areas (15 + project has at least one smoke detector severe, if there are multiple deficiencies 15 + 20 + 35 = 85) and dividing the deficiency, that part of the score may be with the same level of severity) will weights of each by that amount (0.85, identified as ‘‘risk;’’ for example, ‘‘93a, result in a point deduction. which is 85% expressed as a decimal). risk’’ for 93a*, and ‘‘71c, risk’’ for 71c*. The modified weights are 17.6 percent, 8. Essential Weights and Levels There are six distinct letter grade 17.6 percent and 23.5 percent, zero combinations based on the H&S The process of scoring a project’s percent, and 41.2 percent for site, deficiencies and smoke detector physical condition depends on the building exterior, building systems, deficiencies observed: a, a*, b, b*, c, and weights, levels, and associated values of common areas, and units, respectively, c*. For example: the following quantities: and they add up to 100 percent. • • Weights for the 5 inspectable areas A score of 90c* means that the 10. Area and Sub-Area Scores project contains at least one EHS (site, building exteriors, building deficiency to be corrected, including at systems, common areas, and dwelling For inspectable areas with sub-areas least one smoke detector deficiency, but units). (all areas except sites), the inspectable • is otherwise in excellent condition. Weights for inspectable items area score is a weighted average of the • A score of 40b* means the project within inspectable areas (8 to 17 per sub-area scores within that area. The is in poor condition, has at least one area). scoring protocol determines the amenity non-life threatening deficiency, and has • Criticality levels (critical, very weight for the site and each sub-area as at least one missing or inoperable smoke important, important, contributes, and noted in Section VI.1 under the detector. slight contribution) plus their associated definition for normalized sub-area • A score of 55a means that the values for deficiencies within areas weight. For example, a property with no project is in poor condition, even inspected. fencing or gates in the inspectable area though there are no H&S deficiencies. • Severity levels (3, 2, and 1) and of the site would have an amenity • A project in excellent physical their associated values for deficiencies. weight of 90 percent or 0.9 (100 percent condition with no H&S deficiencies • Health and safety deductions minus 10 percent for lack of fencing and would have a score of 90a to 100a. (exigent/fire safety and non-life gates), and a single dwelling unit with threatening for all inspectable areas). all items available for inspection, except 6. Scoring Process Elements • Point loss cap, defined at the a call-for-aid would have an amenity The physical condition scoring inspectable area level. weight of 0.98 or 98 percent (100 process is based on three elements 9. Normalized Area Weights percent minus 2 percent for lack of call- within each project: (1) Five inspectable for-aid). A call-for-aid is a system areas (site, exterior, systems, common Area weights are used to obtain a designed to provide elderly residents areas, and dwelling units); (2) weighted average of area scores. A the opportunity to call for help in the inspectable items in each inspectable project’s overall physical condition event of an emergency. area; and (3) observed deficiencies. score is a weighted average of all The amenity weight excludes all inspectable area scores. The nominal health and safety items. Each deficiency 7. Scoring Using Weighted Averages weights are: as weighted and normalized are The score for a property is the subtracted from the sub-area or site- weighted average of the five inspectable Weight weighted amenity score. Sub-area and Inspectable area (percent) area scores, where area weights are site area scores are further reduced for adjusted to account for all of the Site ...... 15 any observed health and safety inspectable items that are actually Building Exterior ...... 15 deficiencies. These deductions are taken present to be inspected. In turn, area Building Systems ...... 20 at the site, building, or unit level. At scores are calculated by using weighted Common Areas ...... 15 this point, a control is applied to averages of sub-area scores (e.g., Dwelling Units ...... 35 prevent a negative site, building, or unit building area scores for a single building score. The control ensures that no single or unit scores for a single unit) for all These weights are assigned for all building or unit can affect an area score sub-areas within an area. inspections when all inspectable items more than its weighted share. For all areas except the site, are present for each area and for each normalized sub-area weights are building and unit. All of the inspectable 11. Overall Project Score determined using the size of sub-areas, items may not be present in every The overall project score is the the items available for inspection, and inspectable area. When items are weighted average of the five inspectable the sub-area’s probability of selection missing in an area, the area weights are area scores, with the five areas weighted for inspection. Sub-area scores are modified to reflect the missing items so by their normalized weights. determined by deducting points for that within that area they will add up Normalized area weights reflect both the deficiencies, including H&S to 100 percent. Area weights are initial weights and the relative weights deficiencies, based on the importance recalculated when some inspectable between areas of inspectable items (weight) of the item, the criticality of the items are missing in one or more area(s). actually present. For reporting purposes, deficiency, and the severity of the Although rare, it is possible that an the number of possible points is the deficiency. The maximum deduction for inspectable area could have no normalized area weight adjusted by a single deficiency cannot exceed the inspectable items available; for example, multiplying by 100 so that the possible point cap for the inspectable area where there could be no common areas in the points for the five areas add up to 100. the deficiency is observed and a sub- inspected residential buildings and no In the Physical Inspection Report for area score cannot be less than zero. common buildings. In this case, the each project that is sent to the PHA, the Also, points will be deducted only for weight of the ‘‘common areas’’ would be following items are listed: one deficiency of the same kind within zero percent and its original 15 percent • Normalized weights as the a sub-area. For example, if multiple weight would be equitably redistributed ‘‘possible points’’ by area;
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• The area scores, taking into account reduced by the application of the point Element Associated value the points deducted for observed loss cap. Although interim results in the deficiencies; examples are rounded to one decimal, Calculation for the 100.00 ¥ 77.5 = 22.5 • The deductions for H&S for each only the final results are rounded for initial propor- inspectable area; and actual calculations. tionate score. ÷ • The overall project score. Normalizing factor ... 100 100 = 1 Following this section, another Normalized Initial 22.5 × 1 = 22.5 The Physical Inspection Report allows example is given specifically for public sub-area score. the PHA and the project manager to see housing projects to show how project the magnitude of the points lost by scores are rolled up into the PHAS Example #2. This example illustrates how inspectable area and the impact on the physical indicator score for the PHA as the building systems inspectable area score is score of the H&S deficiencies. a whole. calculated from the sub-area score. Consider 12. Examples of Physical Condition a property with two buildings with the Example #1. This example illustrates how following characteristics: Score Calculations the score for a sub-area of building systems • Building One (from example #1 above): is calculated based on the following features. The physical inspection scoring is —28 units Consider a project for which the five deficiency based. All projects start with —100 percent amenity weight for items that inspectable areas are present and during the 100 points. Each deficiency observed are present to be inspected in building inspection of a residential building with 28 systems reduces the score by an amount units missing/damaged/expired fire dependent on the importance and —Building systems sub-area score is 22.5 extinguishers are observed. This deficiency points severity of the deficiency, the number of has a severity level of 3, which has a severity • Building Two: buildings and units inspected, the weight of 1.00 (see Item 1 of this section); a inspectable items actually present to be criticality level of 5, which has a criticality —2 units inspected, and the relative weights weight of 5 (see Item 1 of this section); and —62 percent amenity weight for items that between inspectable items and an item weight of 15.5. The amount of the are present to be inspected in the points deducted is the item weight (15.5), building’s systems inspectable areas. —Building systems sub-area score is 100.0 multiplied by the criticality weight (5), The calculation of a physical points condition score is illustrated in the multiplied by the severity weight (1), which equals 77.5. The score for the building systems area is examples provided below. The the weighted average of the individual scores examples go through a number of If this sub-area has all inspectable items, the amenity weight for the sub-area adds to for each building’s systems. Each building interim stages in calculating the score, 100%. If missing/damaged/expired fire systems score is weighted by the number of illustrating how sub-area scores are extinguishers is the only deficiency observed, units and the percent of the weight for items present to be inspected in the building calculated for a single project, how the the initial proportionate score for this sub- systems inspectable area. sub-area scores are rolled up into area area (building systems in building one) is the The building systems area score is scores, how the point cap is applied, amenity score minus the deficiency points, and how area scores are combined to determined as follows. First, the unit normalized to a 100-point basis. In this weighted average for each building is calculate the overall project score. One instance the initial proportionate sub-area ¥ × ÷ computed by multiplying the number of particular deficiency, missing/damaged/ score is 100 77.5 = 22.5 (100 100) = units in the building by the amenity weight expired fire extinguishers, is carried 22.5. Because the point deduction for the for that building. The unit weighted average through the example. missing/damaged/expired fire extinguishers for each building then is divided by the total As will be seen, the deduction starts is 77.5, this deficiency accounts for 77.5% of of the building weights for all buildings in as a percent of the sub-area. Then the the sub-area score. Additional deficiencies or the property to determine the proportion of area score is decreased considerably in H&S deficiencies would be calculated in the building weight for each building. the final overall project score since it is same manner and further decrease the sub- Multiplying the proportion of building area score, and if the result is less than zero averaged across other sub-areas weight by the initial sub-area score for the (a negative number) the score is set to zero. building produces the building systems area (building systems in the example) and score. The building systems area score for the then averaged across the five Element Associated value property is the sum of the building systems inspectable areas. Last, as applicable, area score for each building. the points deducted due to the Amenity Score ...... 100.0 In this example, the buildings systems area observance of a particular deficiency are Deficiency points ..... 77.5 score for the property is 25.7.
Unit Building Number × Amenity = weighted of units weight average
One ...... 28 1.00 28.0 Two ...... 2 .62 1.24
Total ...... 30 ...... 29.24
Sum of Proportion Unit weighted average ÷ building = of building weights weight
28.0 ...... 29.24 .958 1.24 ...... 29.24 .042
29.24
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Building sys- Proportion of building weight × Initial sub-area = tems area score score
.958 ...... 22 .5 21.5 .042 ...... 100.0 4.2
...... 25.7
As shown in the calculations above, the building weight allocated to building one, or number of units in the property. Normalizing proportion of building weight allocated to 77.5 × .958 = 74.2. the unit weighted average of amenity weights ÷ building one is 95.8% (28.0 29.24 = .958). Example #3. This example illustrates how for each building by multiplying by 100 A building systems area score of 25.7 the overall weighted average for the building results in the overall building systems indicates that the point deduction for the systems area amenity weight is calculated. weighted average amenity weight. In this missing/damaged/expired fire extinguishers The unit weighted average of amenity weight in building one is 74.2 points: The number for each building is computed by dividing example, the overall building systems of points deducted at the sub-area (from the unit weighted average for the building (as weighted average amenity weight for the example #1) multiplied by the proportion of calculated in example #2) by the total property is 97.4.
Unit Overall build- Unit Total weighted Normalized ing systems Building weighted ÷ units in = average × to a 100 = weighted aver- average property of amenity point basis age amenity weights weight
One ...... 28.0 30 .933 100 93.3 Two ...... 1.24 30 .041 100 4.1
Total ...... 29.24 ...... 97.4
Example #4. This example illustrates how —Score: 25.7 points that was calculated in the three examples the score for a property is calculated. —97.4 percent weighted average amenity above. Consider a property with the following weight The property score is determined as characteristics. All of the values are —Nominal area weight: 20 percent follows. The amenity weighted average is presumed except for the values buildings • Common Areas computed by multiplying the nominal area systems which were calculated in the —Score: 77 points weight for the inspectable area (see Item 1 of preceding examples. this Section) by the amenity weight • —20 percent weighted average amenity Site weight (presumed for the example). Next, the —Score: 90 points —Nominal area weight: 15 percent amenity weighted averages for the five inspectable areas are added to determine the —67.5 percent weighted average amenity • Dwelling Units weight total adjusted weight (80.5 in this example). —Score: 85 points —Nominal area weight: 15 percent to determine the maximum possible points —94 weighted average amenity weight for the inspectable area, each amenity • Building Exteriors —Nominal area weight: 35 percent weighted average is divided by the total —Score: 85 points To calculate the property score, the adjusted weight and then multiplied by 100 —100 percent weighted average amenity adjusted area weights for all five inspectable to normalize the result. The sum of the five weight areas are determined. The amenity weights maximum inspectable area points is the total —Nominal area weight: 15 percent for each of the five inspectable areas shown number of possible points for the property. • Building Systems (from Examples 2 and in the table below are all presumed, except In this example, the maximum possible 3) for the amenity weight for building systems points, 99.9, was rounded to 100.
Nominal Amenity Total Normalized Maximum × Amenity ÷ × to 100 Inspectable area area weight = weighted adjusted point = possible weight average weight scale area points
Site ...... 15 0.675 10.1 80.5 100 12.5 Building Exterior ...... 15 1.00 15.0 80.5 100 18.6 Building Systems ...... 20 0.974 19.5 80.5 100 24.2 Common Areas ...... 15 0.20 3.0 80.5 100 3.7 Dwelling Units ...... 35 0.94 32.9 80.5 100 40.9
Total ...... 80.5 ...... 100.0
Before the final property score is building systems will be the result of 18.0. Because the point loss cap for building calculated, the points deducted for each multiplying the number of building systems systems is 10 points, this 18.0 point deficiency are checked against the point loss points deducted for the deficiency (74.2 as deduction exceeds the cap. Therefore, the cap in the applicable inspectable area to determined in example #2) by the proportion total points deducted due to the missing/ assure that no single deficiency results in the of total points allocated to the building damaged/expired fire extinguishers deduction of too many points. For the systems inspectable area (.242 from the table deficiency in building one is reduced to 10. missing/damaged/expired fire extinguishers above). In this example, the points deducted There are four steps to implement the point in building one, the points deducted under for this deficiency would be 74.2 × .242 = deduction in the final score. First, the points
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lost at the area level are set. For this property, area level (41.3) by the proportion of building recalculated sub-area score for building one the building systems points deducted due to weight for building one (.958), or 41.3 ÷ .958 building systems is the amenity score (100) missing/damaged/expired fire extinguishers = 43.1 minus the building systems sub-area is set by dividing the point cap (10) by the Third, the building one building systems deficiency points (43.1), or 100 ¥ 43.1 = proportion of total points allocated to sub-area score is recalculated by summing 56.9. building systems (.242), or 10 ÷.242 = 41.3. the building systems deficiencies in building Second, the building systems sub-area one. In example #1, the missing/damaged/ The last step in the application of the point weight for building one is set. This is expired fire extinguishers is the only loss cap is the determination of the building determined by dividing the points lost at the deficiency in this sub-area. Therefore, the systems area score for the property.
Unit Sum Initial Building Number × Amenity ÷ of the × propor- Building of units weight = weighted building tionate = systems average weights score area score
One ...... 28 1.00 28.0 29.24 56.9 54.5 Two ...... 2 0.62 1.24 29.24 100.0 4.2
Total ...... 30 ...... 29.24 ...... 58.7
The recalculated building systems area weight, divided by the total adjusted amenity reflects how the missing/damaged/expired score is 58.7 points, and will be rounded to weight, and normalized to a 100-point basis, fire extinguishers deficiency from example 59. This area score is used to calculate the in order to produce the possible points for #1 in building systems impacts the overall overall property score. the inspectable area. The property score is property score. In this example, the property The nominal possible points for each the sum of all weighted inspectable area score of 78.9 is rounded to 79. inspectable area is multiplied by the amenity scores for that property. The example below
Normalized Project Inspectable area Area × Area ÷ to a 100 = weighted points score point scale area scores
Site ...... 12.5 90 100 11.2 Building Exterior ...... 18.6 85 100 15.8 Building Systems ...... 24.2 59 100 14.3 Common Areas ...... 3.7 77 100 2.8 Dwelling Units ...... 40.9 85 100 34.8
Total ...... 100.0 ...... 78.9
13. Computing the PHAS Physical all buildings.) When all buildings in a to be selected for inspection in Phase 1. Since Inspection Score project are not selected in the building all buildings were selected in Phase 1 of sampling, Phase 2 is not invoked. Both The physical inspection score for the sample through Phase 1, Phase 2 is used to increase the size of the building buildings will then have a selection PHAS for a PHA is the weighted average probability of 1.00 and a sampling weight of of the PHA’s individual project physical sample. In Phase 2, the additional 1.00. inspection scores, where the weights are buildings that are to be included in the Example #2. This example illustrates a the number of units in each project sample are selected with equal project with some buildings selected in Phase divided by the total number of units in probabilities so that the total residential 1, other buildings selected in Phase 2, and all projects for the PHA. building sample size is the lesser of some buildings that are not selected at all. either (1) the dwelling unit sample size, The project is comprised of 22 residential Example: Project 1 has a score of 79 and or (2) the number of residential buildings. Two of the buildings each have 10 has 30 units (from the example above) dwelling units and the other 20 buildings are Project 2 has a score of 88 and has 600 buildings. To illustrate the process for sampling single-family dwelling units, for a total of 40 units. dwelling units (2 × 10) + 20 = 40. The target The overall PHAS score is computed as buildings, two examples are provided dwelling unit sample size for a project with follows: below: 40 dwelling units is 16. The sampling ratio × × Score = [79 30/(30+600)] + [88 600/ Example #1. This example illustrates a for this project is the total number of units (30+600)] project with two buildings for which both divided by the unit sample size, or 40 ÷16 = 3.76 + 83.81 buildings are sampled with certainty. = 2.5. In accordance with the inspection = 87.57 that rounds to an overall physical Building 1 has 10 dwelling units and protocol of inspecting the minimum of the inspection score of 88. building 2 has 20 dwelling units, for a total dwelling unit sample (16) and the number of 14. Examples of Sampling Weights for of 30 dwelling units. The target dwelling unit residential buildings (22), 16 of the residential buildings will be inspected for Buildings sample size for a project with 30 dwelling units is 15. Thus, the sampling ratio for this this project. The determination of which buildings project is the total number of dwelling units In Phase 1 of sampling, the two buildings will be inspected is a two-phase divided by the unit sample size, or 30 ÷ 15 with 10 dwelling units are selected with process. In Phase 1 of the process, all = 2. This means that every second dwelling certainty since each building has more than common buildings and buildings that unit will be selected. The number of 2.5 dwelling units. Each of the single-family buildings has a 1 ÷ 2.5 or 0.40 probability of contain sampled dwelling units that residential buildings to be inspected is the minimum of 15 (the dwelling unit sample) selection in Phase 1. will be inspected are included in the and 2 (the number of residential buildings). Assume that both multi-unit buildings and sampled buildings that will be Thus, 2 residential buildings will be eight of the single-family buildings (10 inspected. (Dwelling units are sampled inspected. Since both buildings have at least buildings in all) are selected in Phase 1. This with equal probabilities at random from 2 dwelling units, both buildings are certain leaves 12 single-family buildings available
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for selection in Phase 2. Since 16 residential determine possible indications of IV. Environmental Review buildings will be inspected, the sample of 10 noncompliance with the Fair Housing buildings selected in Phase 1 falls six Act (42 U.S.C. 3601–3619) and section This notice provides operating buildings short of a full sample. Therefore, 504 of the Rehabilitation Act of 1973 (29 instructions and procedures in six buildings will be selected in Phase 2. connection with activity under the Since Phase 2 sampling will select 6 of the U.S.C. 794). More specifically, during 12 previously unselected buildings, each the physical inspection, the inspector Public Housing Assessment System building not selected in Phase 1 will have a will record if: (1) There is a wheelchair- regulations at 24 DFR part 902 that have six in 12 (0.50) probability of selection in accessible route to and from the main previously been subject to the required Phase 2. ground floor entrance of the buildings environmental review. Accordingly, The two multi-unit buildings each have a under 24 CFR 50.19(c)(4), this notice is sampling probability calculated as follows: inspected; (2) the main entrance for Sampling probability = 1.00 + ((1.00¥1.00) every building inspected is at least 32 categorically excluded from × 0.50) = 1.00. The sampling weight for these inches wide, measured between the environmental review under the buildings is 1. door and the opposite door jamb; (3) National Environmental Policy Act of The single-family buildings each have a there is an accessible route to all 1969 (42 U.S.C. 4321). sampling probability calculated as follows: Sampling probability = 0.40 + ((1.00¥0.40) exterior common areas; and (4) for Dated: September 26, 2011. × 0.50) = 0.70. The sampling weight of multi-story buildings that are inspected, Sandra B. Henriquez, ÷ selected single-family buildings is 1 0.70 = the interior hallways to all inspected Assistant Secretary for Public and Indian 1.43. units and common areas are at least 36 Housing. 15. Accessibility Questions inches wide. These items are recorded, but do not affect the score. Appendix I—Proposed Changes to HUD reviews particular elements Dictionary of Deficiency Definitions during the physical inspection to
Inspectable area Inspectable item Deficiency Current 2.3 definition Proposed definition Change rationale
1. Building Exte- Walls ...... Damaged Chim- The chimney, including the The chimney, including the This is a technical modi- rior. neys. part that extends above part that extends above fication to include defi- the roofline, has sepa- the roofline, has sepa- ciencies for chimney rated from the wall or rated from the wall or caps as a Level 1 defi- has cracks, spalling, has cracks, spalling, ciency. missing pieces, or bro- missing pieces, or bro- ken sections. ken sections (including chimney caps). 2. Building Exte- Windows ...... Window systems provide Window systems provide This provision eliminates rior. light, security, and exclu- light, security, and exclu- the confusion of inspect- sion of exterior noise, sion of exterior noise, ing some windows on ex- dust, heat, and cold. dust, heat, and cold. terior and other windows Frame materials include Frame materials include on interior. Windows are wood, aluminum, vinyl, wood, aluminum, vinyl, now inspected on the ex- etc. etc. Note removed. terior and interior of in- Note: This does not include spected units. However, windows that have de- only interior observations fects noted from inspec- are scored. tion from inside the unit. 3. Building Exte- Windows ...... Security Bars Exiting (egress) is severely Exiting (egress) is severely This is a clarification and rior. Prevent limited or impossible, be- limited or impossible, be- definitional change that Egress. cause security bars are cause security bars are provides language re- damaged or improperly damaged or improperly garding scoring a defi- constructed or installed. constructed or installed. ciency for security bars Security bars that are that open. This change designed to open also rewrites the Level 3 should open. If they do definition for clarity. not open, record a defi- ciency. 4. Building Exte- Windows ...... Missing/Deterio- The caulking or glazing The caulking or glazing The definition for this defi- rior. rated Caulk- compound that resists compound that resists ciency is unchanged. ing/Seals/ weather is missing or de- weather is missing or de- Now interior observations Glazing Com- teriorated. teriorated. only will be scored and pound. the Level 2 deficiency will be lowered to a Level 1, since the deficiency only indicates superficial deterioration and not damage to the frame or structure itself.
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Inspectable area Inspectable item Deficiency Current 2.3 definition Proposed definition Change rationale
5. Building Exte- Windows ...... Peeling/Needs Paint covering the window Paint covering the window The definition is unchanged rior. Paint. assembly or trim is assembly or trim is but now only interior ob- cracking, flaking, or oth- cracking, flaking, or oth- servations will be scored. erwise failing. -or- erwise failing. -or- The window Note: This The window Note: This does not include win- does not include win- dows that are not in- dows that are not in- tended to be painted as- tended to be painted as- sembly or trim is not sembly or trim is not painted or is exposed to painted or is exposed to the elements. the elements. 6. Building Sys- Exhaust System Roof Fans Inop- The ventilation system to The ventilation system to This definitional clarification tems. erable. exhaust kitchen or bath- exhaust air from build- provides language to in- room air does not func- ing areas (such as dicate that there is the tion. kitchen, bathroom, etc.) possibility that the in- does not function. spector may encounter Note: exhaust fans in other 1. The inspector shall de- building areas besides termine if the fan is the kitchen or bathroom. event activated (exam- ple: fire, timer, etc.)—if so, there is no deficiency. 2. ‘‘Missing’’ only refers to the case where there was a fan to begin with. If a fan was not included in the design, do not record a deficiency for not having one. 7. Building Sys- HVAC ...... Portion of the building sys- Portion of the building sys- This definitional clarification tems. tem that provides ability tem that provides ability ensures that there is suf- to heat or cool the air to heat or cool the air ficient language added to within the building. In- within the building. In- clarify that the deficiency cludes equipment such cludes equipment such would include the as boilers, burners, fur- as boilers, burners, fur- functionality of the cool- naces, fuel supply, hot naces, fuel supply, hot ing system. water and steam distribu- water and steam distribu- tion, and associated pip- tion, centralized air ing, filters, and equip- conditioning systems, ment. Also includes air and associated piping, handling equipment and filters, and equipment. associated ventilation Also includes air han- ducting. dling equipment and as- sociated ventilation duct- ing. 8. Building Sys- HVAC ...... Boiler/Pump Water or steam is escaping Coolant, water, or steam is This change adds lan- tems. Leaks. from unit casing or sys- escaping from unit cas- guage to clarify that this tem piping. ing and/or pump pack- deficiency also covers ing/system piping. the use of non-water coolants in building HVAC systems. 9. Common Ceiling ...... Bulging/Buckling A ceiling is bowed, de- A ceiling is bowed, de- Phrase added to definition Areas. flected, sagging, or is no flected, sagging, or is no to indicate the imminent longer aligned hori- longer aligned hori- possibility of material or zontally. zontally to the extent building component fail- that ceiling failure is ure. possible. 10. Common Ceiling ...... Holes/Missing The ceiling surface has The ceiling surface has This is a technical modi- Areas. Tiles/Panels/ punctures that may or punctures that may or fication that ensures the Cracks. may not penetrate com- may not penetrate com- deficiency would include pletely. -or- pletely. -or- cracking in ceiling mate- Panels or tiles are missing Panels or tiles are missing rials. Level 1 and Level 3 or damaged. or damaged. definitions were modified to include reference to cracks and the last sec- tion of Level 2 was de- leted.
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Inspectable area Inspectable item Deficiency Current 2.3 definition Proposed definition Change rationale
11. Common Ceiling ...... Mold ...... You see evidence of water You see evidence of water This technical modification Areas. infiltration, mold, or mil- infiltration, or other acknowledges that other dew that may have been moisture producing possible sources of caused by saturation or conditions causing moisture beyond water surface failure. mold or mildew that may infiltration contribute to have been caused by mold and mildew growth. saturation or surface fail- Further, the Level 2 defi- ure. nition is eliminated and there are now technical modifications to the Lev- els for this type of defi- ciency. 12. Common Floors ...... Hard Floor Cov- You see that flooring—ter- You see that hard floor- This deficiency definition Areas. ering Missing razzo, hardwood, ce- ing—terrazzo, hardwood, now will include a tech- Flooring/Tiles. ramic tile, or other floor- ceramic tile, sheet vinyl, nical modification to ing material—is missing. vinyl tiles, or other simi- specify additional types lar flooring material—is of flooring that should be missing section(s), or considered and the var- presents a tripping or ious types of defects the cutting hazard, associ- inspector should ob- ated with but not lim- serve. ited to holes or delamination. 13. Common Floors ...... Soft Floor Cov- You see damage to carpet You see damaged and This is a definitional Areas. ering Dam- tiles, wood, sheet vinyl, missing carpet. change that simplifies aged. or other floor covering. the definition of the defi- ciency to focus on just carpeting. 14. Common FHEO ...... Routes Ob- Verify that routes to all out- Verify that at least one This is a modification and Areas. structed or In- side common areas are route to all outside com- clarification of the defi- accessible to accessible to wheel- mon areas is accessible ciency definition to reflect Wheelchair. chairs (i.e., there are to wheelchairs (i.e., there FHEO and other Federal curb cuts, ramps, and are curb cuts, ramps, requirements as they re- sufficient (36″) width). and sufficient (36″) late to handicapped ac- width). cessibility. 15. Common Floors ...... Rot/Deteriorated The subfloor has decayed The subfloor has decayed This is a clarification aimed Areas. Subfloor. or is decaying. or is decaying. at simplifying the defi- Note: ciency language for 1. If there is any doubt, Level 2 and 3 defi- apply weight to detect ciencies for decaying noticeable deflection. subfloors. 2. This type of defect typi- cally occurs in kitchens and bathrooms. 16. Common HVAC ...... Inoperable ...... The heating, cooling, or The heating, cooling, or This is a clarification of the Areas. ventilation system does ventilation system does deficiency language. not function. not function. Note: Note: If the HVAC system 1. If the HVAC system is does not operate be- not functioning because cause of seasonal condi- it is not the right season, tions, do not record this do not record this as a as a deficiency. deficiency. 2. Statement may be vali- dated by resident survey process. 17. Common HVAC ...... Noisy, Vibrating, The HVAC distribution The HVAC distribution This definitional change al- Areas. Leaking. components, including components, including lows for the inclusion of fans, are the source of fans, are the source of examples of deficiencies abnormal noise, unusual unusual vibrations, to help give the inspector vibrations, or leaks. leaks, or abnormal a better understanding of noise. Examples may specific types of damage include, but are not to the property. limited to: screeching, squealing, banging, shaking, etc. 18. Common Dishwasher/Gar- Inoperable ...... A dishwasher or garbage A dishwasher or garbage This is a clarification of the Areas. bage Disposal. disposal, if provided, disposal, if provided, definition. does not function as it does not function. should.
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Inspectable area Inspectable item Deficiency Current 2.3 definition Proposed definition Change rationale
19. Common Walls ...... Damaged ...... You see punctures in the You see cracks and/or This change is a technical Areas. wall surface that may or punctures in the wall sur- modification to the defini- may not penetrate com- face that may or may not tion of a wall deficiency. pletely. Panels or tiles penetrate completely. The change makes it may be missing or dam- Panels or tiles may be clear that cracks are aged. missing or damaged. considered a deficiency Note: This does not include Note: and that control/construc- small holes from hanging 1. This does not include tion joints are not consid- pictures, etc. small holes from hanging ered a deficiency. pictures, etc. 2. Control joints/construc- tion joints should not be recorded as a deficiency. 20. Common Range Hood/Ex- Excessive The apparatus that draws The apparatus that draws This clarification modifies Areas. haust Fans. Grease/Inop- out cooking exhaust out cooking exhaust the Level 1 definition to erable. does not function as it does not function. include other conditions should. that could impede air flow. 21. Common Graffiti ...... You see crude inscriptions You see crude inscriptions This definition change adds Areas. or drawings scratched, or drawings scratched, to the definition in order painted, or sprayed on a painted, or sprayed on to specify the number building surface, retain- an interior building sur- and location of occur- ing wall. face at one location. An rences of graffiti as well interior surface includes as exclude certain types but is not limited to walls, of sanctioned wall art. doors, ceiling, and floors. A location is defined as one general area in a building such as one hallway in a 10 story building or one floor of a stairwell in a 5 story building. Note: There is a difference between art forms and graffiti. If there by design in accordance with prop- er authorization, do not consider full wall murals and other art forms as graffiti. 22. Units ...... HVAC ...... General Rust/ You see a component of You see a component of This change adds lan- Corrosion. the system with deterio- the system with deterio- guage that clearly and ration from oxidation or ration from oxidation or adequately defines the corrosion of system parts. corrosion of system definition for deteriora- parts. Deterioration is tion. defined as rust, and/or formations of metal ox- ides, flaking, or discol- oration, or a pit or crevice. 23. Units ...... HVAC System .. Inoperable ...... The heating, cooling, or The heating, cooling, or This is simply the addition ventilation system does ventilation system does of a word to the Level 3 not function. not function. deficiency to correct a grammatical error. 24...... Units ...... HVAC ...... Misaligned Chimney/Ven- The exhaust system on a The exhaust system on ei- tilation. gas-fired unit is mis- ther a gas, oil fired, or aligned. coal unit is misaligned. This is a definitional change that includes the oil fired and coal fired chimney units within the scope of this deficiency. 25. Units ...... Kitchen ...... Range Hood/Ex- The apparatus that draws The apparatus that draws The definition is modified haust Fans— out cooking exhaust out cooking exhaust for a Level 1 deficiency Excessive does not function as it does not function. to include other condi- grease/inoper- should. tions that could impede able. air flow.
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Inspectable area Inspectable item Deficiency Current 2.3 definition Proposed definition Change rationale
26. Units ...... Call-for-Aid ...... Inoperable ...... The system does not func- The system does not func- This clarification informs tion as it should. tion the inspector on the se- Note: Inspector should quencing of their inspec- verify that the Call-for- tion of the Call-for-Aid Aid only alerts local enti- and removes an unnec- ties (on-site) prior to test- essary and confusing ing. phrase. 27. Site ...... Fencing and Holes/Missing A fence or gate is rusted, Anon-security/non-safety This definitional change Gates. Sections/Dam- deteriorated, or uprooted (example: Privacy/Deco- splits the fence defi- aged/Falling/ which may threaten se- rative) fence or gate is ciency definition into two Leaning. curity, health, or safety. rusted, deteriorated, up- distinct types of fences: Note: Gates for swimming rooted, missing or con- non- pool fences are covered tains holes. security/non-safety in another section, Notes: fences and security/safe- ‘‘Common Areas—Pools 1. Gates for swimming pool ty type fences or gates. and Related Structures’’. fences are covered in This definition incor- another section, ‘‘Site porates the deficiency Fencing and Gates—Se- definition entitled ‘Fenc- curity’’. ing and Gates—Holes’. 2. Fences designed for Se- curity/Safety are ad- dressed under Security Fences: A security/safety (i.e.: Perimeter/Security) fence or gate is rusted, deteriorated, uprooted or missing such that it may threaten security, health or safety. A security/safety (i.e.: Pe- rimeter/Security) fence or gate is rusted, deterio- rated, uprooted or miss- ing such that it may threaten security, health or safety. 28. Site ...... Fencing and Holes ...... There is an opening or This definition no longer This previous stand-alone Gates. penetration in any fence stands alone because it definition is incorporated or gate designed to keep was included in the pre- into the deficiency defini- intruders out or children vious definition: Site tion entitled ‘Fencing in. Look for holes that Fencing and Gates— and Gates—Holes/ could allow animals to Holes/Missing Sections/ Missing Sections/Dam- enter or could threaten Damaged/Falling/Leaning. aged/Falling/Leaning’. the safety of children. 29. Site ...... Grounds ...... Ponding/Site Water or ice has collected Water or ice has collected This definitional change Drainage. in a depression or on in a depression or on specifies area param- ground where ponding ground where ponding eters in Level 2 and 3 was not intended. was not intended. definitions. 30. Site ...... Parking Lots/ Cracks ...... There are visible faults in There are visible faults in This definition is now incor- Driveways/ the pavement: longitu- the pavement: longitu- porated into a new defi- Roads. dinal, lateral, alligator, dinal, lateral, alligator, nition entitled ‘‘Dam- etc. etc. The pavement sinks aged Paving’’. or rises because of the failure of sub base mate- rials. 31. Site ...... Parking Lots/ Ponding ...... Water or ice has accumu- Water or ice has accumu- This definitional change re- Driveways/ lated in a depression on lated in a depression on moves a note considered Roads. an otherwise flat plane. an otherwise flat plane. obsolete and also more clearly states Level 2 and 3 definitions to more clearly specify water depth parameters. 32. Site ...... Parking Lots/ Potholes/Loose A hole caused by road sur- Definition consolidated into This definition is now incor- Driveways/ Material ...... face failure -or- a new definition entitled porated into a new defi- Roads. Loose, freestanding aggre- ‘‘Damaged Paving’’. nition entitled ‘‘Dam- gate material caused by aged Paving’’. deterioration.
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Inspectable area Inspectable item Deficiency Current 2.3 definition Proposed definition Change rationale
33. Site ...... Parking Lots/ Settlement/ The pavement sinks or Definition consolidated into This definition is now incor- Driveways/ Heaving rises because of the fail- a new definition entitled porated into a new defi- Roads. ure of sub base mate- ‘‘Damaged Paving’’. nition entitled ‘‘Dam- rials. aged Paving’’. Note: If you see that water or ice has collected in the depression, record this under Ponding. 34. Site ...... Retaining Walls Damaged/Fall- A retaining wall structure is A retaining wall structure is The Level 2 deficiency has ing/Leaning. deteriorated, damaged, deteriorated, damaged, been lowered to a Level falling, or leaning. falling, or leaning. 1 deficiency since it indi- cates only superficial de- terioration to the retain- ing wall and not com- promised structural integ- rity. 35. Site ...... Walkways and Cracks/Settle- Visible faults in the pave- Visible faults in the pave- The definition now no Steps. ment/Heaving. ment: longitudinal, lat- ment: longitudinal, lat- longer would include eral, alligator, etc. -or- eral, alligator, etc. -or- Note 4, since it was Pavement that sinks or Pavement that sinks or vague and did not al- rises because of the fail- rises because of the fail- ways apply. ure of sub base mate- ure of sub base mate- rials. rials. 36. Health and Air Quality ...... Mold and Mil- You see evidence of mold You see evidence of water This is a definitional Safety. dew. or mildew, especially in infiltration or other mois- change that includes bathrooms and air out- ture producing condition other causes of moisture lets. that causes mold, or mil- such as water infiltration, dew. which would ultimately Note: If the area has at lead to the growth of least 1 square foot of mold or mildew. It also mold or mildew, record it clarifies the area and ex- as a deficiency. tent of damage nec- essary to record the defi- ciency. 37. Health and Air Quality ...... Sewer Odor De- You detect sewer odors You detect sewer odors. .... This simplifies the definition Safety. tected. that could pose a health to allow for any sewer risk if inhaled for pro- odor to be considered a longed periods. deficiency, instead of re- quiring the inspector to make a subjective judg- ment on whether the odor could pose a health risk. 38. Health and Electrical Haz- Exposed Wires/ You see exposed bare You see exposed bare This clarification adds addi- Safety. ards. Open Panels. wires or openings in wires or openings in tional notes on condi- electrical panels. electrical panels tions under which Note: If the accompanying Note: capped wires would be authority has identified 1. If the accompanying considered a deficiency abandoned wiring, property representative and which can be ac- capped wires do not has identified abandoned cepted. pose a risk and should wiring, capped wires do not be recorded as a de- not pose a risk and ficiency. should not be recorded as a deficiency. They must be enclosed in a junction box as defined in Note 2 below. 2. If the capped wires are not properly enclosed in a junction box, record as a deficiency. 39. Health and Emergency/Fire Missing Exit Exit signs that clearly iden- Exit signs that clearly iden- This clarification defines Safety. Exits. Signs. tify all emergency exits tify all emergency exits more explicitly what are missing. -or- are missing. -or- types of illumination exit There is no illumination in There is no adjacent or signs ought to have (ad- the area of the sign. other internal illumina- jacent or internal) instead tion in operation on or of the vague phrase near the sign. ‘area’.
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Inspectable area Inspectable item Deficiency Current 2.3 definition Proposed definition Change rationale
40. Health and Flammable Ma- Improperly Flammable materials are Flammable or combustible This clarification adds a Safety. terials. Stored. improperly stored, caus- materials are improperly Note to the definition to ing the potential risk of stored near a heat or provide guidance on fire or explosion. electrical source, causing what may constitute the potential risk of fire flammable materials. or explosion. Note: Flammable or com- bustible materials may include but are not lim- ited to Gasoline, Paint Thinners, Kerosene, Pro- pane, paper, boxes, etc. 41. Health and Hazards ...... Tripping ...... You see any physical de- You see any physical de- This clarification adds lan- Safety. fect that poses a tripping fect that poses a tripping guage to provide a clear risk, generally in walk- risk, generally in walk- understanding of how ways or other traveled ways or other traveled large the deviation within areas. areas. Typically, the de- a walkway must be to be Note: This does not include fect must present at considered a tripping tripping hazards from least a three-quarter hazard. elevators that do not inch deviation. level properly. For this Note: This does not include deficiency, see Eleva- tripping hazards from tor—Tripping, under elevators that do not Health and Safety. level properly. For this deficiency, see Eleva- tor—Tripping, under Health and Safety.
[FR Doc. 2011–26516 Filed 10–12–11; 8:45 am] http://www.gomr.boem.gov/homepg/ DATES: Nominations must be received BILLING CODE 4210–67–P pubinfo/MapsandSpatialData.html. on or before November 14, 2011. Dated: October 5, 2011. ADDRESSES: Please submit nominations L. Renee Orr, to Sue Bement, Designated Federal DEPARTMENT OF THE INTERIOR Chief, Strategic Resources. Officer (DFO), Bureau of Indian Education, Albuquerque Service Center, Bureau of Ocean Energy Management [FR Doc. 2011–26503 Filed 10–12–11; 8:45 am] Division of Performance and BILLING CODE 4310–MR–P Accountability, P.O. Box 1088, Outer Continental Shelf Official Albuquerque, New Mexico 87103–1088. Protraction Diagram, Lease Maps, and DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Sue Supplemental Official Outer Bement, Education Specialist, telephone Continental Shelf Block Diagrams Bureau of Indian Affairs (505) 563–5274. AGENCY: Bureau of Ocean Energy SUPPLEMENTARY INFORMATION: The Management (BOEM), Interior. Request for Nominations of Members Advisory Board was established in To Serve on the Bureau of Indian ACTION: Availability of revised North accordance with the Federal Advisory Education Advisory Board for Committee Act, Public Law 92–463. The American Datum of 1927 (NAD 27) Exceptional Children Outer Continental Shelf (OCS) Official following provides information about the Advisory Board, the membership Protraction Diagram (OPD), Lease Maps, AGENCY: Bureau of Indian Education, and the nomination process. and Supplemental Official OCS Block Interior. Diagrams (SOBDs); Correction. ACTION: Notice of Request for Objective and Duties Nominations. SUMMARY: BOEM (formerly the Bureau (a) Members of the Advisory Board will provide guidance, advice and of Ocean Energy Management, SUMMARY: Pursuant to the Federal Regulation and Enforcement) published recommendations with respect to Advisory Committee Act, 5 U.S.C., special education and related services a notice in the Federal Register (76 FR Appendix 2, and the Individuals with 54787) on September 2, 2011, entitled for children with disabilities in Bureau- Disabilities Education Improvement Act funded schools in accordance with the ‘‘OCS Official Protraction Diagram, (IDEA) of 2004, (20 U.S.C. 1400 et seq.) Lease Maps, and Supplemental Official requirements of IDEA of 2004. the Bureau of Indian Education requests (b) The Advisory Board will: OCS Shelf Block Diagrams’’ that nominations of individuals to serve on (1) Provide advice and contained an error. This notice corrects the Advisory Board for Exceptional recommendations for the coordination the address of the Web site where the Children (Advisory Board). There are of services within the BIE and with revised maps can be found. seven positions available. The Bureau of other local, state and Federal agencies; FOR FURTHER INFORMATION CONTACT: Indian Education (BIE) will consider (2) Provide advice and Steven Textoris, Acting Chief, Leasing nominations received in response to this recommendations on a broad range of Division at (703) 787–1223 or via email Request for Nominations, as well as policy issues dealing with the provision at [email protected]. other sources. The SUPPLEMENTARY of educational services to American Correction: Copies of the revised OPD, INFORMATION section for this notice Indian children with disabilities; Lease Maps, and SOBDs are available provides Advisory Board and (3) Serve as advocates for American for download in .pdf format from membership criteria. Indian students with special education
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needs by providing advice and Interior recommendations for the Federally recognized Tribes, as well as recommendations regarding best chairperson; however, the chairperson from state directors of special education practices, effective program and other board members will be (within the 23 states in which Bureau- coordination strategies, and appointed by the Secretary of the funded schools are located) concerned recommendations for improved Interior. Advisory Board members shall with the education of Indian children educational programming; serve staggered terms of 2 or 3 years with disabilities as described above. (4) Provide advice and from the date of their appointment. (b) Nominees should have expertise recommendations for the preparation of Miscellaneous and knowledge of the issues and/or information required to be submitted to needs of American Indian children with (a) Members of the Advisory Board the Secretary of Education under 20 disabilities. Such knowledge and will not receive compensation, but will U.S.C. 1411(h)(2)(D); expertise are needed to provide advice (5) Provide advice and recommend be reimbursed for travel, including and recommendations to the BIE policies concerning effective inter/intra- subsistence, and other necessary regarding the needs of American Indian agency collaboration, including expenses incurred in the performance of children with disabilities. modifications to regulations, and the their duties in the same manner as elimination of barriers to inter/intra- persons employed intermittently in (c) A summary of the candidate’s agency programs and activities; and Government Service under 5 U.S.C. qualifications (re´sume´ or curriculum (6) Report and direct all 5703. vitae) must be submitted with the correspondence to the Assistant (b) A member may not participate in nomination application below. Secretary—Indian Affairs through the matters that will directly affect, or Nominees must have the ability to Director, BIE with a courtesy copy to the appear to affect, the financial interests attend Advisory Board meetings, carry DFO. of the member or the member’s spouse out Advisory Board assignments, or minor children, unless authorized by participate in teleconferences, and work Membership the appropriate ethics official. in groups. (a) As required by 20 U.S.C. Compensation from employment does (d) The Department of the Interior is 1411(h)(6), the Advisory Board shall be not constitute a financial interest of the committed to equal opportunity in the composed of 15 individuals involved in member so long as the matter before the workplace and seeks diverse Advisory or concerned with the education and committee will not have a special or Board membership, which is bound by provision of services to Indian infants, distinct effect on the member or the the Indian Preference Act of 1990 (25 toddlers, children, and youth with member’s employer, other than as part U.S.C. 472). disabilities. The Advisory Board of a class. The provisions of this composition will reflect a broad range of paragraph do not affect any other Basis for Nominations viewpoints and will include at least one statutory or regulatory ethical If you wish to nominate someone for (1) member representing each of the obligations to which a member may be appointment to the Advisory Board, following interests: Indians with subject. disabilities; teachers of children with (c) The Advisory Board meets at least please do not make the nomination until disabilities; Indian parents or guardians twice a year, budget permitting, but the person has been contacted and has of children with disabilities; service additional meetings may be held as agreed to have his/her name submitted providers; state education officials; local deemed necessary by the Assistant to BIE for this purpose. education officials; state interagency Secretary—Indian Affairs or DFO. NOMINATION APPLICATION coordinating Councils (for states having (d) All Advisory Board meetings are Indian reservations); Tribal open to the public in accordance with (Please fill out this form completely representatives or Tribal organization the Federal Advisory Committee Act and include a copy of your re´sume´ or representatives; and other members regulations. curriculum vitae.) representing the various divisions and Nomination Information Note: Additional pages may be added for entities of the BIE. further explanation of any item. Reference (b) The Assistant Secretary—Indian (a) Nominations are requested from the corresponding item number for which the Affairs may provide the Secretary of the individuals, organizations, and additional explanation is made.
1. Full Name:
2. Mailing Address: 3. City: 4. State: 5. Zip Code:
6. Primary Contact Phone Number: 7. Secondary Contact Phone Number: () ()
8. Place of Employment:
9. Work Address: 10. City: 11. State: 12. Zip Code:
13. Employment Title:
14. Work Telefax Number: 15. E-mail address:
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() Note to Review Committee: Prior to submitting this nomination application, the above named individual must be contacted regarding appoint- ment to the Advisory Board. Do not make a nomination until this person has been contacted and has agreed to have his/her name submitted to the Bureau of Indian Education.
16. If appointed, this person will 17. What role would you recommend involvement and a brief description of represent one of the following categories this nominee serve? duties. (Attach additional pages if (check all applicable): ll Advisory Board Chairperson necessary.) ll Indian persons with disabilities ll Advisory Board Member 20. Provide a list of current ll Teachers of children with 18. Nominee’s experience with BIE memberships or current affiliations with disabilities funded schools: (check all applicable) professional education organizations, ll Indian parents or guardians of ll BIE Day School particularly special education ll children with disabilities BIE Boarding School organizations. Identify organization ll ll Service providers Off-Reservation Boarding School offices held if applicable. (Attach ll ll Tribal Contract School State Education Officials additional pages if necessary.) ll Local Education Officials ll Tribal Grant School ll State Interagency Coordinating ll Cooperative School 21. Identify special interests, Councils (for states having Indian 19. List nominee’s experiences related activities, awards (professional, reservations) to the education of Indian infants, educational and community) related to ll Tribal representatives or tribal toddlers, children and youth with the education of disabled Indian organization representatives disabilities, in the past 10 years. Include children (infants, toddlers, children ll Bureau employees concerned with time frames of experience or and/or youth). (Attach additional pages the education of children with employment, position titles, location of if necessary.) disabilities employment or organization 22. Nominee recommended by:
Name of Indian tribe, organization, individual (include position title) making nomination:
Address of Indian tribe, organization, individual making nomination:
City: State: Zip Code:
Signature of Authorizing Official:
Date of Signature: Phone (Area code + Number): Telefax (Area code + Number):
Paperwork Reduction Act Dated: October 6, 2011. East Main Street, Canon City, CO has Paul Tsosie, been cancelled. Notice of the meeting This information collection has been Chief of Staff, Assistant Secretary—Indian appeared in the Federal Register March assigned OMB Control No. 1076–0179, Affairs. 18, 2011. with an expiration of September 30, [FR Doc. 2011–26448 Filed 10–12–11; 8:45 am] 2014. This information is being DATES: The meeting was scheduled for BILLING CODE 4310–6W–P collected to select individuals to serve October 19, 2011, 9:15 a.m. to 4:30 p.m. on a Federal advisory committee, the FOR FURTHER INFORMATION CONTACT: Tina Advisory Board for Exceptional DEPARTMENT OF THE INTERIOR Brown, Front Range RAC Coordinator, Children. Response to this request is BLM Colorado State Office, 2850 required to obtain a benefit. You are not Bureau of Land Management Youngfield St., Lakewood, CO 80215. required to respond to this collection of [LLCOF00000–L18200000–XX0000] Phone: (303) 239–3668. E-mail: information unless it displays a [email protected]. currently valid OMB control number. Front Range Resource Advisory SUPPLEMENTARY INFORMATION: This information will be used to Council Meeting Cancellation The 15- determine the eligibility and the ranking member Council advises the Secretary of the nominee. Public reporting burden AGENCY: Bureau of Land Management, of the Interior, through the BLM, on a for this form is estimated to average 1 Interior. variety of planning and management hour per response, including the time ACTION: Notice of public meeting issues associated with public land for reviewing instructions, gathering cancellation. management in the BLM Front Range and maintaining data, and completing District. Future meetings will be and reviewing the form. Direct SUMMARY: In accordance with the announced through a separate Federal comments regarding the burden Federal Land Policy and Management Register notice. estimate or any other aspect of this form Act (FLPMA) and the Federal Advisory Dated: October 5, 2011. to Information Collection Clearance Committee Act of 1972 (FACA), notice Officer—Indian Affairs, U.S. is hereby given that the Front Range John Mehlhoff, Department of the Interior, 1849 C Resource Advisory Council meeting Acting State Director. Street, NW., MS–4141, Washington, DC scheduled for October 19, 2011 at the [FR Doc. 2011–26447 Filed 10–12–11; 8:45 am] 20240. BLM Royal Gorge Field Office, 3028 BILLING CODE 4310–JB–P
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INTERNATIONAL TRADE 7,697,093; 7,286,192; 6,818,967; SUMMARY: Notice is hereby given that a COMMISSION 7,199,854; and 7,663,729. The complaint was filed with the U.S. complaint named as respondents International Trade Commission on [Investigation No. 337–TA–793] Samsung Electronics Co., Ltd. of Seoul, August 31, 2011, under section 337 of Certain Flat Panel Display Devices, and Korea; Samsung Electronics America, the Tariff Act of 1930, as amended, 19 Products Containing the Same; Notice Inc. of Ridgefield Park, New Jersey; U.S.C. 1337, on behalf of Openwave of Commission Determination Not To AT&T, Inc. of Dallas, Texas (‘‘AT&T’’); Systems Inc. of Redwood City, Review an Initial Determination Best Buy Co., Inc. of Richfield, California. Supplements to the Granting Complainants’ Unopposed Minnesota (‘‘Best Buy’’); and complaint were received on September Motion for Leave To Amend the BrandsMart USA, Inc. of Hollywood, 1, 16, and 19, 2011. The complaint Complaint and Notice of Investigation Florida (‘‘BrandsMart’’). alleges violations of section 337 based On August 31, 2011, AU Optronics upon the importation into the United AGENCY: U.S. International Trade filed an unopposed motion for leave to States, the sale for importation, and the Commission. amend the complaint and notice of sale within the United States after ACTION: Notice. investigation to add as respondents: importation of certain devices for AT&T Mobility LLC of Atlanta, Georgia; mobile data communication by reason SUMMARY: Notice is hereby given that Best Buy Stores, L.P. of Richfield, of infringement of certain claims of U.S. the U.S. International Trade Minnesota; BestBuy.com, LLC of Eden Patent No. 6,233,608 (‘‘the ‘608 patent’’); Commission has determined not to Prairie, Minnesota; Best Buy U.S. Patent No. 6,289,212 (‘‘the ‘212 review the presiding administrative law Purchasing, LLC of Richfield, patent’’); U.S. Patent No. 6,405,037 (‘‘the judge’s (‘‘ALJ’’) initial determination Minnesota; and Interbond Corporation ‘037 patent’’); U.S. Patent No. 6,430,409 (‘‘ID’’) (Order No. 6) granting of America of Fort Lauderdale, Florida, (‘‘the ‘409 patent’’); and U.S. Patent No. Complainant’s unopposed motion for d/b/a BrandsMart U.S.A. (collectively, 6,625,447 (‘‘the ‘447 patent’’). The leave to amend the complaint and ‘‘New Respondents’’), and to terminate complaint further alleges that an notice of investigation. the investigation as to AT&T, Best Buy, industry in the United States exists or FOR FURTHER INFORMATION CONTACT: and BrandsMart. is in the process of being established as Panyin A. Hughes, Esq., Office of the On September 15, 2011, the ALJ required by subsection (a)(2) of section General Counsel, U.S. International issued the subject ID, granting the 337. motion. The ALJ found that, pursuant to Trade Commission, 500 E Street, SW., The complainant requests that the Washington, DC 20436, telephone (202) Commission Rule 210.14(b) (19 CFR 210.14(b)), good cause exists to amend Commission institute an investigation 205–3042. Copies of non-confidential the complaint and notice of and, after the investigation, issue an documents filed in connection with this investigation. None of the parties exclusion order and cease and desist investigation are or will be available for petitioned for review of the ID. orders. inspection during official business The Commission has determined not ADDRESSES: The complaint, except for hours (8:45 a.m. to 5:15 p.m.) in the to review the ID. Accordingly, the New any confidential information contained Office of the Secretary, U.S. Respondents are added as respondents therein, is available for inspection International Trade Commission, 500 E to this investigation and AT&T, Best during official business hours (8:45 a.m. Street, SW., Washington, DC 20436, Buy, and BrandsMart are terminated to 5:15 p.m.) in the Office of the telephone (202) 205–2000. General from the investigation. information concerning the Commission The authority for the Commission’s Secretary, U.S. International Trade may also be obtained by accessing its determination is contained in section Commission, 500 E Street, SW., Room Internet server at http://www.usitc.gov. 337 of the Tariff Act of 1930, as 112, Washington, DC 20436, telephone The public record for this investigation amended (19 U.S.C. 1337), and in (202) 205–2000. Hearing impaired may be viewed on the Commission’s section 210.42 of the Commission’s individuals are advised that information electronic docket (EDIS) at http:// Rules of Practice and Procedure (19 CFR on this matter can be obtained by edis.usitc.gov. Hearing-impaired 210.42). contacting the Commission’s TDD persons are advised that information on terminal on (202) 205–1810. Persons this matter can be obtained by Issued: October 6, 2011. with mobility impairments who will contacting the Commission’s TDD By order of the Commission. need special assistance in gaining access terminal on (202) 205–1810. James R. Holbein, to the Commission should contact the SUPPLEMENTARY INFORMATION: The Secretary to the Commission. Office of the Secretary at (202) 205– Commission instituted this investigation [FR Doc. 2011–26445 Filed 10–12–11; 8:45 am] 2000. General information concerning on July 28, 2011, based on a complaint BILLING CODE 7020–02–P the Commission may also be obtained filed by AU Optronics Corporation of by accessing its internet server at Hsinchu, Taiwan and AU Optronics http://www.usitc.gov. The public record Corporation America of Milpitas, INTERNATIONAL TRADE for this investigation may be viewed on California (collectively, ‘‘AU COMMISSION the Commission’s electronic docket Optronics’’). 76 FR 45296 (July 28, [Inv. No. 337–TA–809] (EDIS) at http://edis.usitc.gov. 2011). The complaint alleged violations FOR FURTHER INFORMATION CONTACT: the of section 337 of the Tariff Act of 1930 Certain Devices for Mobile Data Office of Unfair Import Investigations, (19 U.S.C. 1337) in the importation into Communication; Notice of Institution U.S. International Trade Commission, the United States, the sale for of Investigation; Institution of telephone (202) 205–2560. importation, and the sale within the Investigation Pursuant to 19 U.S.C. 1337 Authority: The authority for institution of United States after importation of this investigation is contained in section 337 certain flat panel display devices, and AGENCY: U.S. International Trade of the Tariff Act of 1930, as amended, and products containing the same by reason Commission. in section 210.10 of the Commission’s Rules of infringement of various claims of ACTION: Notice. of Practice and Procedure, 19 CFR 210.10 United States Patent Nos. 6,281,955; (2011).
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Scope of Investigation: Having investigation will not be granted unless Register pursuant to Section 6(b) of the considered the complaint, the U.S. good cause therefor is shown. Act on June 13, 2011 (76 FR 34252). International Trade Commission, on Failure of a respondent to file a timely For additional information, please October 5, 2011, ordered that— response to each allegation in the contact Thomas B. O’Brien, Jr., Vice (1) Pursuant to subsection (b) of complaint and in this notice may be President and General Counsel, at 100 section 337 of the Tariff Act of 1930, as deemed to constitute a waiver of the Barr Harbor Drive, West Conshohocken, amended, an investigation be instituted right to appear and contest the PA 19428–2959, telephone # 610–832– to determine whether there is a allegations of the complaint and this 9597. violation of subsection (a)(1)(B) of notice, and to authorize the section 337 in the importation into the administrative law judge and the Patricia A. Brink, United States, the sale for importation, Commission, without further notice to Director of Civil Enforcement, Antitrust or the sale within the United States after the respondent, to find the facts to be as Division. importation of certain devices for alleged in the complaint and this notice [FR Doc. 2011–26427 Filed 10–12–11; 8:45 am] mobile data communication that and to enter an initial determination BILLING CODE 4410–11–M infringe one or more of claims 1, 3, 5– and a final determination containing 9, 33–36, and 47–50 of the ‘608 patent; such findings, and may result in the claims 1–11, 14–24, 28–33, and 35–38 of issuance of an exclusion order or a cease DEPARTMENT OF JUSTICE and desist order or both directed against the ‘212 patent; claims 1–14 and 27 of Antitrust Division the ‘037 patent; claims 12–44 and 63– the respondent. 84 of the ‘409 patent; and claims 1–7, Issued: October 6, 2011. Notice Pursuant to the National 9–19, and 21–29 of the ‘447 patent, and By order of the Commission. Cooperative Research and Production whether an industry in the United James R. Holbein, Act of 1993; PXI Systems Alliance, Inc. States exists or is in the process of being established as required by subsection Secretary to the Commission. Notice is hereby given that, on (a)(2) of section 337; [FR Doc. 2011–26444 Filed 10–12–11; 8:45 am] September 6, 2011, pursuant to Section (2) For the purpose of the BILLING CODE 7020–02–P 6(a) of the National Cooperative investigation so instituted, the following Research and Production Act of 1993, are hereby named as parties upon which 15 U.S.C. 4301 et seq. (‘‘the Act’’), PXI this notice of investigation shall be DEPARTMENT OF JUSTICE Systems Alliance, Inc. has filed written served: notifications simultaneously with the (a) The complainant is: Antitrust Division Attorney General and the Federal Trade Openwave Systems Inc., 2100 Seaport Commission disclosing changes in its Notice Pursuant to the National Boulevard, Redwood City, CA 94063. membership. The notifications were Cooperative Research and Production (b) The respondents are the following filed for the purpose of extending the Act of 1993; ASTM International entities alleged to be in violation of Act’s provisions limiting the recovery of section 337, and are the parties upon Notice is hereby given that, on August antitrust plaintiffs to actual damages which the complaint is to be served: 31, 2011, pursuant to Section 6(a) of the under specified circumstances. Apple Inc., 1 Infinite Loop, Cupertino, National Cooperative Research and Specifically, Shikino High-Tech Co. CA 95014. Production Act of 1993, 15 U.S.C. 4301 Ltd., Toyama, Japan, has been added as Research In Motion Ltd., 295 Phillip et seq. (‘‘the Act’’), ASTM International a party to this venture. Also, DC to Light Street, Waterloo, Ontario N2L 3W8, (‘‘ASTM’’) has filed written notifications Limited, Bray, Wicklow, Ireland, has Canada. simultaneously with the Attorney withdrawn as a party to this venture. Research In Motion Corp., 122 West General and the Federal Trade No other changes have been made in John Carpenter Parkway, Suite 430, Commission disclosing additions or either the membership or planned Irving, TX 75039. changes to its standards development activity of the group research project. (c) The Office of Unfair Import activities. The notifications were filed Membership in this group research Investigations, U.S. International Trade for the purpose of extending the Act’s project remains open, and PXI Systems Commission, 500 E Street, SW., Suite provisions limiting the recovery of Alliance, Inc. intends to file additional 401, Washington, DC 20436; and antitrust plaintiffs to actual damages written notifications disclosing all (3) For the investigation so instituted, under specified circumstances. changes in membership. the Acting Chief Administrative Law Specifically, ASTM has provided an On November 22, 2000, PXI Systems Judge, U.S. International Trade updated list of current, ongoing ASTM Alliance, Inc. filed its original Commission, shall designate the standards activities originating between notification pursuant to Section 6(a) of presiding Administrative Law Judge. May 2011 and August 2011 designated the Act. The Department of Justice Responses to the complaint and the as Work Items. A complete listing of published a notice in the Federal notice of investigation must be ASTM Work Items, along with a brief Register pursuant to Section 6(b) of the submitted by the named respondents in description of each, is available at Act on March 8, 2001 (66 FR 13971). accordance with section 210.13 of the http://www.astm.org. The last notification was filed with Commission’s Rules of Practice and On September 15, 2004, ASTM filed the Department on June 29, 2001. A Procedure, 19 CFR 210.13. Pursuant to its original notification pursuant to notice was published in the Federal 19 CFR 201.16(d)–(e) and 210.13(a), Section 6(a) of the Act. The Department Register pursuant to Section 6(b) of the such responses will be considered by of Justice published a notice in the Act on August 9, 2011 (76 FR 48883). the Commission if received not later Federal Register pursuant to Section than 20 days after the date of service by 6(b) of the Act on November 10, 2004 Patricia A. Brink, the Commission of the complaint and (69 FR 65226). Director of Civil Enforcement, Antitrust the notice of investigation. Extensions of The last notification was filed with Division. time for submitting responses to the the Department on May 11, 2011. A [FR Doc. 2011–26428 Filed 10–12–11; 8:45 am] complaint and the notice of notice was published in the Federal BILLING CODE 4410–11–M
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DEPARTMENT OF JUSTICE Register pursuant to Section 6(b) of the Register pursuant to Section 6(b) of the Act on June 13, 2011 (76 FR 34252). Act on July 20, 2011 (76 FR 43347). Antitrust Division Patricia A. Brink, Patricia A. Brink, Notice Pursuant to the National Director of Civil Enforcement, Antitrust Director of Civil Enforcement, Antitrust Cooperative Research and Production Division. Division. Act of 1993; IMS Global Learning [FR Doc. 2011–26426 Filed 10–12–11; 8:45 am] [FR Doc. 2011–26429 Filed 10–12–11; 8:45 am] BILLING CODE M Consortium, Inc. BILLING CODE 4410–11–M
Notice is hereby given that, on DEPARTMENT OF JUSTICE September 6, 2011, pursuant to Section DEPARTMENT OF JUSTICE 6(a) of the National Cooperative Antitrust Division Research and Production Act of 1993, Antitrust Division 15 U.S.C. 4301 et seq. (‘‘the Act’’), INS Notice Pursuant to the National Notice Pursuant to the National Global Learning Consortium, Inc. has Cooperative Research and Production Cooperative Research and Production filed written notifications Act of 1993; Network Centric Act of 1993; Cooperative Research simultaneously with the Attorney Operations Industry Consortium, Inc. General and the Federal Trade Group on Pre-Ignition Prevention Commission disclosing changes in its Notice is hereby given that, on August Program membership. The notifications were 31, 2011, pursuant to Section 6(a) of the Notice is hereby given that, on filed for the purpose of extending the National Cooperative Research and September 13, 2011, pursuant to Section Act’s provisions limiting the recovery of Production Act of 1993, 15 U.S.C. 4301 6(a) of the National Cooperative antitrust plaintiffs to actual damages et seq. (‘‘the Act’’), Network Centric Research and Production Act of 1993, under specified circumstances. Operations Industry Consortium, Inc. 15 U.S.C. 4301 et seq. (‘‘the Act’’), Specifically, Lightbox Education, (‘‘NCOIC’’) has filed written Southwest Research Institute— Cheadle, United Kingdom; notifications simultaneously with the Cooperative Research Group on Pre- UMassOnline, The University of Attorney General and the Federal Trade Ignition Prevention Programs (‘‘P3’’) has Massachusetts, Shrewsbury, MA; Commission disclosing changes in its membership. The notifications were filed written notifications Escambia County School District, filed for the purpose of extending the simultaneously with the Attorney Pensacola, FL; Forsyth County Schools, Act’s provisions limiting the recovery of General and the Federal Trade Cumming, GA; Scientia Ltd., antitrust plaintiffs to actual damages Commission disclosing (1) The Cambridge, United Kingdom; and under specified circumstances. identities of the parties to the venture Wisconsin Virtual School, Tomahawk, Specifically, The Open Group, San and (2) the nature and objectives of the WI, have been added as parties to this Francisco, CA, has been added as a venture. The notifications were filed for venture. party to this venture. the purpose of invoking the Act’s Also, Korea Cyber University (KCU), Also, Israel Aerospace Industries, provisions limiting the recovery of Seoul, Republic of Korea; Tele- Ltd., Lod, Israel; Objective Interface antitrust plaintiffs to actual damages Universite, Montreal, Quebec, Canada; Systems, Inc., Herndon, VA; under specified circumstances. Laureate Online Education, Baltimore, International Data Links Society, San Pursuant to Section 6(b) of the Act, MD; and 4C Soft, Inc., Seocho-gu, Seoul, Diego, CA; Institute for Defense the identities of the parties to the Republic of Korea, have withdrawn as Analyses, Alexandria, VA; Center for venture are: Ford Motor Company, parties to this venture. In addition, Netcentric Product Research, East Dearborn, MI; GM Global Technology Compass Knowledge Group has changed Hartford, CT; Vector Planning and Operations, Inc., Detroit, MI; Honda, its name to EmbanetCompass, Orlando, Services, Inc. (‘‘VPSI’’), San Diego, CA; Tochigi, Japan; Infineum, Linden, NJ; FL. SYPAQ, Melbourne, Australia; and PCA Peugeot Citroen Automobiles, No other changes have been made in Telephonics Corporation, Farmingdale, NY, have withdrawn as parties to this Veliz-Villacoublay Cedex, France; either the membership or planned venture. Suzuki Motor Corporation, Hamamatsu activity of the group research project. City, Japan; and Toyota, Aichi, Japan. No other changes have been made in Membership in this group research The general area of P3’s planned activity project remains open, and IMS Global either the membership or planned activity of the group research project. is to develop a fundamental Learning Consortium, Inc. intends to file understanding of the factors that lead to additional written notifications Membership in this group research project remains open, and NCOIC low speed pre-ignition (LSPI), and disclosing all changes in membership. intends to file additional written design a solution to eliminate it. On April 7, 2000, IMS Global earning notifications disclosing all changes in Secondary objectives are to understand Consortium, Inc. filed its original membership. the effect of lube oil properties and their interaction with fuel on LSPI, notification pursuant to Section 6(a) of On November 19, 2004, NCOIC filed the Act. The Department of Justice its original notification pursuant to understand how hardware design can be published a notice in the Federal Section 6(a) of the Act. The Department used to mitigate the effect of lube oil on Register pursuant to Section 6(b) of the of Justice published a notice in the LSPI, and develop fuel and/or lube Act on September 13, 2000 (65 FR Federal Register pursuant to Section specification and test methodology that 55283). 6(b) of the Act on February 2, 2005 (70 allows P3 to identify fluids that improve The last notification was filed with FR 5486). LSPI performance. Membership in this the Department on May 9, 2011. A The last notification was filed with group research project remains open, notice was published in the Federal the Department on June 9, 2011. A and P3 intends to file additional written notice was published in the Federal
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notification disclosing all changes in to time the presiding Chair may solicit Directors, the meeting may be closed to membership or planned activities. comments from the public. the public to hear briefings by consultant candidates and to consider Patricia A. Brink, Call-In Directions for Open Sessions and act on selection of a Director of Civil Enforcement, Antitrust • Call toll-free number: 1–866–451– consultant.**** Division. 4981; A verbatim written transcript will be [FR Doc. 2011–26430 Filed 10–12–11; 8:45 am] • When prompted, enter the made of the closed session of the Board, BILLING CODE 4410–11–M following numeric pass code: Finance Committee and Institutional 5907707348 Advancement Committee meetings. • When connected to the call, please However, the transcript of any portions LEGAL SERVICES CORPORATION immediately ‘‘MUTE’’ your telephone. of the closed session falling within the relevant provisions of the Government Meeting Schedule: Sunshine Act Meetings; Notice in the Sunshine Act, 5 U.S.C. 552b(c)(6), Sunday, October 16, 2011 Time.* (9) and (10), and the corresponding DATES: Date And Time: The Legal provisions of the Legal Services Services Corporation Board of Directors 1. Governance and Performance Review Committee 4:45 p.m. Corporation’s implementing regulations, and its six committees will meet on 45 CFR 1622.5(e), (g) and (h), will not October 16–18, 2011. On Sunday, Monday, October 17, 2011 be available for public inspection. A October 16, the Governance & copy of the General Counsel’s Performance Review Committee will 1. Operations & Regulations Committee 1:15 p.m. Certification that in his opinion the meet at 4:45 p.m., Central Daylight closing is authorized by law will be Time. On Monday, October 17, the first 2. Finance Committee** 2:15 p.m. 3. Institutional Advancement available upon request. meeting will commence at 1:15 p.m., Committee** 3:00 p.m. Central Daylight Time. On Tuesday, Matters To Be Considered 4. Audit Committee** 3:30 p.m. October 18, the first meeting will Sunday, October 16, 2011 commence at 10:15 a.m., Central Tuesday, October 18, 2011 Time. Daylight Time. Governance & Performance Review 1. Promotion & Provision for the Committee Location Delivery of Legal Services Committee. 10:15 p.m. 1. Approval of agenda. On Sunday, October 16, the 2. Board of Directors. 1:45 p.m. 2. Approval of minutes of the Governance & Performance Review Committee’s meeting of April 16, 2011. Committee meeting will be held at the Status of Meeting 3. Staff report on: • Hyatt Regency Chicago Hotel, 151 East Open, except as noted below. 2011 Board and Board Member self- Wacker Drive, Chicago, Illinois 60601. • evaluations. Board of Directors—Open, except • On Tuesday, October 18, the Promotion that, upon a vote of the Board of 2011 Committee evaluations. • Update on research agenda. & Provision Committee meeting will be Directors, a portion of the meeting may • held at the Chicago Bar Association, 321 Update on GAO recommendations. be closed to the public to consider and 4. Discussion of President, Officers, South Plymouth Court, Chicago, Illinois act on the report of the Finance 60604. The remaining Board and and IG evaluations for 2011. Committee regarding a technical 5. Consider and act on other business. committee meetings on Monday, correction to LSC’s benefits plan 6. Public Comment. October 17 and Tuesday, October 18, document, to consider and act on the 7. Consider and act on motion to will be held at the American Bar report of the Institutional Advancement adjourn meeting . Association Headquarters, 321 N. Clark Committee regarding reports by * * * * * Street, Chicago, Illinois 60654. consultant candidates, to consider and Monday, October 17, 2011 Public Observation act on briefings from management and LSC’s Inspector General, and to consider Operations & Regulations Committee Unless otherwise noted herein, the and act on the General Counsel’s report Board and all committee meetings will on potential and pending litigation 1. Approval of agenda. 2. Approval of minutes of the be open to public observation. Members involving LSC.*** of the public who wish to attend the • Committee’s meeting of July 20, 2011. Finance Committee—Open, except 3. Approval of minutes of the Board and committee meetings on that, upon a vote of the Board of Monday, October 17 and Tuesday, Committee’s meeting of September 16, Directors, a portion of the meeting may 2011. October 18 at the American Bar be closed to the public to consider and Association Headquarters will need to 4. Consider and act on potential act on a technical correction to LSC’s initiation of rulemaking on enforcement identify themselves to building security benefits plan document. upon entering the building. If you plan • mechanisms and sanctions: Institutional Advancement • Mattie Cohan, Office of Legal to attend any meeting(s) on the 17th or Committee—Upon a vote of the Board of Affairs. 18th, please contact Kathleen Connors, • Laurie Tarantowicz, Office of at [email protected] or 202–295–1617, * Please note that all times in this notice are in Inspector General. at least 2 business days in advance of the Central Daylight Time. 5. Staff report on relationship between the meeting to place your name on the ** The meeting of the Institutional Advancement LSC laws and regulations and LSC guest list. Committee will run concurrently with the meetings of the Finance Committee and the Audit guidance. Members of the public who are unable Committee. to attend in person but wish to listen to *** Any portion of the closed session consisting **** Any portion of the closed session consisting the public proceedings may do so by solely of staff briefings does not fall within the solely of briefings does not fall within the Sunshine following the telephone call-in Sunshine Act’s definition of the term ‘‘meeting’’ Act’s definition of the term ‘‘meeting’’ and, directions provided below but are asked and, therefore, the requirements of the Sunshine therefore, the requirements of the Sunshine Act do Act do not apply to such portion of the closed not apply to such portion of the closed session. 5 to keep their telephones muted to session. 5 U.S.C. 552b(a)(2) and (b). See also 45 CFR U.S.C. 552b(a)(2) and (b). See also 45 CFR 1622.2 eliminate background noises. From time 1622.2 & 1622.3. & 1622.3.
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• Mattie Cohan, Office of Legal 5. Briefing on LSC’s Contracting Closed Session Affairs. Procedures: • 18. Approval of Minutes of the 6. Public comment. David Richardson, Comptroller/ Board’s Closed Session meeting of July 7. Consider and act on other business. Treasurer. 21, 2011 8. Consider and act on adjournment of 6. Consider and act on which major 19. Consider and act on report of the meeting. management processes the Committee Institutional Advancement Committee * * * * * will review in calendar year 2012. regarding selection of a consultant 7. Public comment. 20. Consider and act on report of the Finance Committee 8. Consider and act on other business. Finance Committee regarding a Open Session 9. Consider and act on adjournment of technical correction to LSC’s benefits meeting. 1. Approval of agenda. plan document * * * * * 21. Briefing by Management 2. Approval of the minutes of the 22. Briefing by the Office of Inspector meeting of July 20, 2011. Tuesday, October 18, 2011 General 3. Approval of the minutes of the 23. Consider and act on General meeting of August 1, 2011. Promotion & Provision for the Delivery of Legal Services Committee Counsel’s report on potential and 4. Approval of the minutes of the pending litigation involving LSC meeting of September 13, 2011. 1. Approval of Agenda. 24. Consider and act on adjournment 5. Presentation on LSC’s Financial 2. Approval of Minutes of the of meeting Reports for period ending August 31, Committee’s meeting of July 20, 2011. * * * * * 2011: 3. Courthouse help desk panel • David Richardson, Treasurer/ presentation. CONTACT PERSON FOR INFORMATION: Comptroller. 4. Discussion of future agenda topics. Katherine Ward, Executive Assistant to 6. Staff report on status of FY 2013 5. Public comment. the Vice President & General Counsel, at appropriations process: 6. Consider and act on other business. (202) 295–1500. Questions may be sent • by electronic mail to John Constance, Office of 7. Consider and act on adjournment of _ _ Government Relations and Public meeting. FR NOTICE [email protected]. Affairs * * * * * ACCESSIBILITY: LSC complies with the 7. Consider and act on Resolution # American’s with Disabilities Act and 2011–0XX, Temporary Operating Board of Directors Section 504 of the 1973 Rehabilitation Budget for FY 2012: Open Session Act. Upon request, meeting notices and • Presentation by David Richardson, materials will be made available in Treasurer/Comptroller. 1. Pledge of Allegiance. alternative formats to accommodate 8. Public comment. 2. Approval of agenda. individuals with disabilities. 9. Consider and act on other business. 3. Approval of Minutes of the Board’s Individuals who need other Open Session meeting of July 21, 2011. accommodations due to disability in Closed Session 4. Approval of Minutes of the Board’s order to attend the meeting in person or 1. Consider and act on a technical Open Session meeting of September 19, telephonically should contact Katherine correction to an LSC benefits plan 2011. Ward, at (202) 295–1500 or document 5. Chairman’s Report. [email protected], at 2. Consider and act on adjournment of 6. Members’ Reports. least 2 business days in advance of the meeting 7. President’s Report. meeting. If a request is made without 8. Inspector General’s Report. * * * * * advance notice, LSC will make every 9. Consider and act on the report of effort to accommodate the request but Institutional Advancement Committee the Governance & Performance Review cannot guarantee that all requests can be Committee. Closed Session fulfilled. 10. Consider and act on the report of Dated: October 7, 2011. 1. Approval of agenda. the Promotion & Provision for the 2. Briefing by consultant candidates. Delivery of Legal Services Committee. Victor M. Fortuno, 3. Consider and act on selection of a 11. Consider and act on the report of Vice President and General Counsel. consultant. the Finance Committee. [FR Doc. 2011–26547 Filed 10–11–11; 11:15 am] 4. Consider and act on adjournment of 12. Consider and act on the report of BILLING CODE 7050–01–P meeting. the Audit Committee. * * * * * 13. Consider and act on the report of the Operations & Regulations MORRIS K. UDALL AND STEWART L. Audit Committee Committee. UDALL FOUNDATION, THE UNITED 1. Approval of agenda. 14. Consider and act on the Fiscal STATES INSTITUTE FOR 2. Approval of minutes of the Oversight Task Force Report and public ENVIRONMENTAL CONFLICT Committee’s July 20, 2011 meeting. comment received in response to the RESOLUTION 3. Report on 403(b) annual plan request for comments published in the review and update on annual audit: Federal Register at 76 FR 169 (August Agency Information Collection • Alice Dickerson, Director of Human 31, 2011). Activities: Submission for OMB Resources. 15. Public comment. Review; Comment Request: See List of 4. Consider and act on revised Audit 16. Consider and act on other Evaluation Related ICRs in Section A Committee charter: business. AGENCY: • Morris K. Udall and Stewart L. Mattie Cohan, Office of Legal 17. Consider and act on whether to Udall Foundation, U.S. Institute for Affairs. authorize an executive session of the Environmental Conflict Resolution. • Ronald Merryman, Office of Board to address items listed below, ACTION: Notice. Inspector General. under Closed Session.
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SUMMARY: In compliance with the (Pub. L. 103–62), the U.S. Institute, as continue to administer the evaluation Paperwork Reduction Act (44 U.S.C. part of the Udall Foundation, produces questionnaires on behalf of other 3501 et seq.), this document announces an Annual Performance Budget and an agencies. The burden estimates in the that the U.S. Institute for Environmental Annual Performance and Accountability ICRs take into consideration the multi- Conflict Resolution (the U.S. Institute), Report, linked directly to the goals and agency usage of the evaluation part of the Udall Foundation, is objectives outlined in the Institute’s instruments. submitting to the Office of Management five-year Strategic Plan. The U.S. Key Issues and Budget (OMB) seven Information Institute’s evaluation system is key to Collection Requests (ICRs). All seven evaluating progress towards its The U.S. Institute invites comments ICRs seek revisions to currently performance goals. The U.S. Institute is that can be used to: approved collections due to expire 12/ committed to evaluating all of its i. Evaluate whether the proposed 31/2011 (OMB control numbers 3320– projects, programs and services to collection of information is necessary 0003, 3320–0004, 3320–2005, 3320– measure and report on performance and for the proper performance of the U.S. 0006, 3320–0007, 3320–0009 and 3320– also to use this information to learn Institute, including whether the 0010). The seven ICRs are consolidated from and improve its services. The information will have practical utility; under a single filing to provide a more refined evaluation system has been ii. Enhance the quality, utility, and coherent picture of information carefully designed to support efficient clarity of the information to be collection activities designed primarily and economical generation, analysis and collected; to measure performance. The proposed use of this much-needed information, iii. Minimize the burden of the collections are necessary to support with an emphasis on performance information collection on respondents, program evaluation activities. The measurement, learning and including suggestions concerning use of collection is not expected to have a improvement. automated collection techniques or significant economic impact on As part of the program evaluation other forms of information technology. respondents or to affect a substantial system, the U.S. Institute intends to Section A. Information on Individual number of small entities. collect specific information from ICRs: The U.S. Institute published a Federal participants in, and users of, several of 1. Conflict Assessment Services Register notice on July 26, 2011, 76 FR, its programs and services. Specifically, pages 44611–44613, to solicit public this Federal Notice covers seven Type of Information Collection: comments for a 60-day period. The U.S. programs and services: (1) Conflict Revision of a currently approved Institute received one comment. The assessment services; (2) environmental collection. comment and the U.S. Institute’s conflict resolution (ECR) and Title of Information Collection: response are included in the ICRs. The collaborative problem solving mediation Program Evaluation Instruments for purpose of this notice is to allow an services; (3) ECR and collaborative Conflict Assessment Services. additional 30 days for public comments problem solving facilitation services; (4) OMB Number: 3320–0003. regarding these ICRs. training services; (5) facilitated meeting Affected Public: Individuals or services; (6) roster program services; and DATES: Comments must be submitted on households, business or other for-profit, (7) program support and services. not-for-profit, federal and state, local or or before November 14, 2011. Evaluations mainly involve ADDRESSES: Direct comments to: Office tribal government. administering questionnaires to process Frequency: One time. of Information and Regulatory Affairs, participants and professionals, as well Annual Number of Respondents: 430. Office of Management and Budget as members and users of the National Total Annual Responses: 430. (OMB), Attention: Heidi King, 725 17th Roster. Responses by members of the Average Burden per Response: 5 Street, NW., Washington, DC 20503. public to the Institute’s request for Desk Officer for The Morris K. Udall information (i.e., questionnaires) are minutes. and Stewart L. Udall Foundation, U.S. voluntary. Total Annual Hours: 36.00. Institute for Environmental Conflict In 2003, the Office of Management Total Burden Cost: $1,700.00. Resolution, and Budget (OMB) approved the U.S. 2. ECR and Collaborative Problem _ _ Heidi R. [email protected]. Environmental Protection Agency, Solving Mediation Services FOR FURTHER INFORMATION CONTACT: Conflict Prevention and Resolution Center (CPRC) to act as a named Type of Information Collection: Copies of the evaluation instruments Revision of a currently approved and supporting documents for the administrator of the U.S. Institute’s currently approved information collection. proposed paperwork collections can be Title of Information Collection: downloaded from the Institute’s Web collections for evaluation. In 2008, OMB granted similar status to the U.S. Program Evaluation Instruments for ECR site http://ecr.gov/Resources/ and Collaborative Problem Solving EvaluationProgram.aspx. Department of the Interior, Office of Collaborative Action and Dispute Mediation Services. FOR FURTHER INFORMATION OR FOR PAPER Resolution (CADR). The U.S. Institute, OMB Number: 3320–0004. COPIES OF THE ICRS, CONTACT: Patricia CPRC and CADR will seek approval as Affected Public: Individuals or Orr, Director of Policy, Planning and part of this proposed collection to households, business or other for-profit, Budget, U.S. Institute for Environmental continue this evaluation partnership. not-for-profit, federal and state, local or Conflict Resolution, 130 South Scott The U.S. Institute will also request that tribal government. Avenue, Tucson, Arizona 85701, Fax: the U.S. Army Corps of Engineers, Frequency: One time. 520–670–5530, Phone: 520–901–8548, Conflict Resolution and Public Annual Number of Respondents: E-mail: [email protected]. Participation Center (CPC) be added as 1,975. SUPPLEMENTARY INFORMATION: an additional named administrator. Total Annual Responses: 1,975. Since other agencies have periodically Average Burden per Response: 18 Overview approached the U.S. Institute seeking minutes. To comply with the Government evaluation assistance, the U.S. Institute Total Annual Hours: 596.00. Performance and Results Act (GPRA) will also request OMB approval to Total Burden Cost: $27,964.00.
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3. ECR and Collaborative Problem Title of Information Collection: Operations Mission Directorate, Solving Facilitation Services Program Evaluation Instruments for National Aeronautics and Space Type of Information Collection: Roster Program Services. Administration Headquarters, 300 E Revision of a currently approved OMB Number: 3320–0005. Street, SW., Washington, DC 20546, collection. Affected Public: Business or other for- 202–358–2245; [email protected]. Title of Information Collection: profit, not-for-profit, federal and state, SUPPLEMENTARY INFORMATION: The Program Evaluation Instruments for ECR local or tribal government. agenda topics for the meeting will and Collaborative Problem Solving Frequency: One time. include: Facilitation Services. Annual Number of Respondents: 550. • Re-Organization Status OMB Number: 3320–0010. Total Annual Responses: 550. • Space Launch System/Multi- Affected Public: Individuals or Average Burden per Response: 3.5 Purpose Crew Vehicle Status households, business or other for-profit, minutes. • Overall Human Exploration and not-for-profit, federal and state, local or Total Annual Hours: 32. Operations (HEO) Mission Directorate tribal government. Total Burden Cost: $1,488. Status Frequency: One time. 7. Program Support Services • Status of Commercial Orbital Annual Number of Respondents: Transportation Services and 1,975. Type of Information Collection: Commercial Crew Development Total Annual Responses: 1,975. Revision of a currently approved • Global Exploration Roadmap Average Burden per Response: 12 collection. • Space Life and Physical Science minutes. Title of Information Collection: Research and Applications Total Annual Hours: 404.00. Program Evaluation Instruments for The meeting will be open to the Total Burden Cost: $19,036.00. Program Support Services. public up to the seating capacity of the OMB Number: 3320–0009. 4. Training Services room. This meeting is also available Affected Public: Business or other for- telephonically and by WebEx. You must Type of Information Collection: profit, not-for-profit, federal and state, use a touch tone phone to participate in Revision of a currently approved local or tribal government. this meeting. Any interested person may collection. Frequency: One time. dial access number, 1–888–997–8502 or Title of Information Collection: Annual Number of Respondents: 40. 1–630–395–0408 and then enter the Program Evaluation Instruments for Total Annual Responses: 40. numeric participant passcode: 7614788 Average Burden per Response: 5. Training Services. followed by the # sign. To join via Total Annual Hours: 3.33. OMB Number: 3320–0006. WebEx the link is https:// Total Burden Cost: $157. Affected Public: Individuals or nasa.webex.com/, meeting number 991 households, business or other for-profit, Authority: 20 U.S.C. 5601–5609. 810 548, and password 1101*Tues. It is not-for-profit, federal and state, local or October 6, 2011. imperative that the meeting be held on tribal government. this date to accommodate the Frequency: One time. Ellen Wheeler, Executive Director, Udall Foundation. scheduling priorities of the key Annual Number of Respondents: participants. Attendees will be required [FR Doc. 2011–26481 Filed 10–12–11; 8:45 am] 1,560. to comply with NASA security Total Annual Responses: 1,560. BILLING CODE 6820–FN–P procedures, including the presentation Average Burden per Response: 5.5 of a valid picture ID. U.S. citizens will minutes. need to show valid, officially-issued Total Annual Hours: 143. NATIONAL AERONAUTICS AND picture identification such as a driver’s Total Burden Cost: $6,721. SPACE ADMINISTRATION license to enter into the building and 5. Facilitated Meeting Services [Notice: (11–090)] must state they are attending the NASA Type of Information Collection: Advisory Council Human Exploration NASA Advisory Council; Human Revision of a Currently Approved and Operations Committee session in Exploration and Operations Collection. Room 9H40. Permanent Resident Aliens Committee; Meeting Title of Information Collection: will need to show residency status (valid green card) and a valid, officially Program Evaluation Instruments for AGENCY: National Aeronautics and issued picture identification such as a Facilitated Meeting Services. Space Administration. driver’s license and must state they are OMB Number: 3320–0007. ACTION: Notice of meeting. Affected Public: Individuals or attending the Human Exploration and households, business or other for-profit, SUMMARY: In accordance with the Operations Committee session in Room not-for-profit, federal and state, local or Federal Advisory Committee Act, Public 9H40. All non-U.S. citizens must tribal government. Law 92–463, as amended, the National submit, no less than 10 working days Frequency: One time. Aeronautics and Space Administration prior to the meeting, their name, current Annual Number of Respondents: announces a meeting of the Human address, citizenship, company 3,000. Exploration and Operations Committee affiliation (if applicable) to include Total Annual Responses: 3,000. of the NASA Advisory Council. address, telephone number, and their Average Burden per Response: 5 title, place of birth, date of birth, U.S. DATES: Tuesday, November 1, 2011, visa information to include type, minutes. 8 a.m.–5 p.m.; Local Time. Total Annual Hours: 252. number and expiration date, U.S. Social Total Burden Cost: $11,752. ADDRESSES: National Aeronautics and Security Number (if applicable) to Dr. Space Administration, Headquarters, Bette Siegel, Executive Secretary, 6. Roster Program Services 300 E Street, SW., Room 9H40, Human Exploration and Operations Type of Information Collection: Washington, DC 20546–0001. Committee, Human Exploration and Revision of a currently approved FOR FURTHER INFORMATION CONTACT: Dr. Operations Mission Directorate, NASA collection. Bette Siegel, Human Exploration and Headquarters, Washington, DC 20546.
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For questions, please contact Dr. Siegel a.m. to 4 p.m. on November 10th, will NATIONAL FOUNDATION ON THE at [email protected] or by telephone be closed. ARTS AND THE HUMANITIES at (202) 358–2245. Theater (application review): Meetings of Humanities Panel Dated: October 5, 2011. November 8–10, 2011 in Room 714. This meeting, from 9 a.m. to 5:30 p.m. P. Diane Rausch, AGENCY: The National Endowment for on November 8th, from 9 a.m. to 6 p.m. Advisory Committee Management Officer, the Humanities. on November 9th and from 9 a.m. to 3 National Aeronautics and Space ACTION: Notice of meetings. Administration. p.m. on November 10th, will be closed. [FR Doc. 2011–26391 Filed 10–12–11; 8:45 am] Dance (application review): November SUMMARY: Pursuant to the provisions of 9, 2011 in Room 716. This meeting, BILLING CODE 7510–13–P the Federal Advisory Committee Act from 9 a.m. to 6 p.m., will be closed. (Pub. L. 92–463, as amended), notice is Arts Education (application review): hereby given that the following November 14–15, 2011 in Room 716. meetings of Humanities Panels will be NATIONAL FOUNDATION ON THE This meeting, from 9 a.m. to 6 p.m. on ARTS AND THE HUMANITIES held at the Old Post Office, 1100 November 14th and from 9 a.m. to 4:30 Pennsylvania Avenue, NW., p.m. on November 15th, will be closed. National Endowment for the Arts Washington, DC 20506. Museums (application review): FOR FURTHER INFORMATION CONTACT: Arts Advisory Panel November 15–17, 2011 in Room 627. Elizabeth Voyatzis, Advisory Committee This meeting, from 9 a.m. to 5:30 p.m. Management Officer, National Pursuant to Section 10(a)(2) of the on November 15th, from 9 a.m. to 6 p.m. Endowment for the Humanities, Federal Advisory Committee Act (Pub. on November 16th and from 9 a.m. to Washington, DC 20506; telephone (202) L. 92–463), as amended, notice is hereby 2 p.m. on November 17th, will be 606–8322. Hearing-impaired individuals given that thirteen meetings of the Arts closed. are advised that information on this Advisory Panel to the National Council Music (application review): November matter may be obtained by contacting on the Arts will be held at the Nancy 15–18, 2011 in Room 714. This meeting, the Endowment’s TDD terminal on (202) Hanks Center, 1100 Pennsylvania from 9 a.m. to 5:30 p.m. on November 606–8282. Avenue, NW., Washington, DC 20506 as 15th–17th and from 9 a.m. to 4:30 p.m. follows (ending times are approximate): on November 18th, will be closed. SUPPLEMENTARY INFORMATION: The proposed meetings are for the purpose Arts Education (application review): The closed portions of meetings are of panel review, discussion, evaluation November 1–4, 2011 in Room 716. This for the purpose of Panel review, and recommendation on applications meeting, from 9 a.m. to 5:30 p.m. on discussion, evaluation, and for financial assistance under the November 1st–3rd and from 9 a.m. to 3 recommendations on financial National Foundation on the Arts and the p.m. on November 4th, will be closed. assistance under the National Humanities Act of 1965, as amended, Music (application review): November Foundation on the Arts and the including discussion of information 1–3, 2011 in Room 714. This meeting, Humanities Act of 1965, as amended, given in confidence to the agency by the from 9 a.m. to 5:30 p.m. on November including information given in grant applicants. Because the proposed 1st–2nd and from 9 a.m. to 4:30 p.m. on confidence to the agency. In accordance meetings will consider information that November 3rd, will be closed. with the determination of the Chairman is likely to disclose trade secrets and Presenting (application review): of February 15, 2011, these sessions will commercial or financial information November 1–2, 2011 in Room 627. This be closed to the public pursuant to obtained from a person and privileged meeting, from 9 a.m. to 5:30 p.m. on subsection (c)(6) of section 552b of Title or confidential and/or information of a November 1st and from 9 a.m. to 3:45 5, United States Code. personal nature the disclosure of which p.m. on November 2nd, will be closed. Any person may observe meetings, or would constitute a clearly unwarranted Media Arts (application review): portions thereof, of advisory panels that invasion of personal privacy, pursuant November 2–3, 2011 in Room 730. This are open to the public, and if time to authority granted me by the meeting, from 9 a.m. to 5:30 p.m. on allows, may be permitted to participate Chairman’s Delegation of Authority to November 2nd and from 9 a.m. to 4:30 in the panel’s discussions at the Close Advisory Committee meetings, p.m. on November 3rd, will be closed. discretion of the panel chairman. If you dated July 19, 1993, I have determined Presenting (application review): need any accommodations due to a that these meetings will be closed to the November 3–4, 2011 in Room 627. This disability, please contact the Office of public pursuant to subsections (c)(4), meeting, from 9 a.m. to 5:30 p.m. on AccessAbility, National Endowment for and (6) of section 552b of Title 5, United November 3rd and from 9:00 a.m. to the Arts, 1100 Pennsylvania Avenue, States Code. 4:45 p.m. on November 4th, will be NW., Washington, DC 20506, 202–682– 1. Date: November 1, 2011. closed. 5532, TDY–TDD 202–682–5496, at least Time: 9 a.m. to 5 p.m. Dance (application review): November seven (7) days prior to the meeting. Location: Room 315. 7–8, 2011 in Room 716. This meeting, Further information with reference to Program: This meeting will review from 9 a.m. to 6 p.m. both days, will be these meetings can be obtained from Ms. applications for Enduring Questions, closed. Kathy Plowitz-Worden, Office of submitted to the Division of Education Local Arts Agencies (application Guidelines & Panel Operations, National at the September 15, 2011 deadline. review): November 8–9, 2011 in Room Endowment for the Arts, Washington, 2. Date: November 1, 2011. 730. This meeting, from 9 a.m. to 5:30 DC 20506, or call 202–682–5691. p.m. on November 8th and from 9 a.m. Time: 9 a.m. to 5 p.m. to 2:30 p.m. on November 9th, will be Dated: October 6, 2011. Location: Room 421. closed. Kathy Plowitz-Worden, Program: This meeting will review Folk and Traditional Arts (application Panel Coordinator, Panel Operations, applications for Art and Literature in review): November 8–10, 2011 in Room National Endowment for the Arts. America’s Historical and Cultural 627. This meeting, from 9 a.m. to 5:30 [FR Doc. 2011–26421 Filed 10–12–11; 8:45 am] Organizations Grants Program, p.m. on November 8th–9th, and from 9 BILLING CODE 7537–01–P submitted to the Division of Public
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Programs at the August 17, 2011 Location: Room 315. ACTION: Notice of meeting. deadline. Program: This meeting will review 3. Date: November 1, 2011. applications for Enduring Questions, Pursuant to the provisions of the Time: 9 a.m. to 5 p.m. submitted to the Division of Education Federal Advisory Committee Act (Pub. Location: Room 415. Programs at the September 15, 2011 L. 92–463 as amended) notice is hereby Program: This meeting will review deadline. given that a meeting of the Arts and applications for World Studies II in 11. Date: November 8, 2011. Artifacts Indemnity Panel of the Federal Preservation and Access Humanities Time: 9 a.m. to 5 p.m. Council on the Arts and the Humanities Collections and Reference Resources, Location: Room 315. will be held at 1100 Pennsylvania submitted to the Division of Program: This meeting will review Avenue, NW., Washington, DC 20506, Preservation and Access at the July 20, applications for Enduring Questions, in Room 817, from 9:30 a.m. to 5 p.m., 2011 deadline. submitted to the Division of Education on Thursday, November 3, 2011. 4. Date: November 2, 2011. Programs at the September 15, 2011 The purpose of the meeting is to Time: 9 a.m. to 5 p.m. deadline. review applications for Certificates of Location: Room 421. 12. Date: November 9, 2011. Indemnity submitted to the Federal Program: This meeting will review Time: 9 a.m. to 5 p.m. Council on the Arts and the Humanities applications for African American and Location: Room 421. for exhibitions beginning after Ethnic History and Culture in America’s Program: This meeting will review January 1, 2012. Historical and Cultural Organizations applications for Historic Sites and Because the proposed meeting will Grants Program, submitted to the Places in America’s Historical and consider financial and commercial data Division of Public Programs at the Cultural Organizations Grants Program, and because it is important to keep August 17, 2011 deadline. submitted to the Division of Public values of objects, methods of 5. Date: November 2, 2011. Programs at the August 17, 2011 transportation and security measures Time: 9 a.m. to 5 p.m. deadline. confidential, pursuant to the authority Location: Room 315. 13. Date: November 9, 2011. granted me by the Chairman’s Program: This meeting will review Time: 9 a.m. to 5 p.m. Delegation of Authority to Close applications for Enduring Questions, Location: Room 415. Advisory Committee Meetings, dated submitted to the Division of Education Program: This meeting will review July 19, 1993, I have determined that the Programs at the September 15, 2011 applications for World Studies III in meeting would fall within exemption (4) deadline. Preservation and Access Humanities of 5 U.S.C. 552(b) and that it is essential 6. Date: November 3, 2011. Collections and Reference Resources, to close the meeting to protect the free Time: 9 a.m. to 5 p.m. submitted to the Division of exchange of views and to avoid Location: Room 415. Preservation and Access at the July 20, interference with the operations of the Program: This meeting will review 2011 deadline. Committee. applications for American Studies I in 14. Date: November 15, 2011. It is suggested that those desiring Preservation and Access Humanities Time: 9 a.m. to 5 p.m. more specific information contact Collections and Reference Resources, Location: Room 415. Advisory Committee Management submitted to the Division of Program: This meeting will review Officer, Elizabeth Voyatzis, 1100 Preservation and Access at the July 20, applications for U.S. History & Culture Pennsylvania Avenue, NW., 2011 deadline. IV in Preservation and Access Washington, DC 20506, or call 202–606– 7. Date: November 3, 2011. Humanities Collections and Reference 8322. Resources, submitted to the Division of Time: 9 a.m. to 5 p.m. Elizabeth Voyatzis, Location: Room 315. Preservation and Access at the July 20, Program: This meeting will review 2011 deadline. Advisory Committee, Management Officer. applications for Enduring Questions, 15. Date: November 30, 2011. [FR Doc. 2011–26485 Filed 10–12–11; 8:45 am] submitted to the Division of Education Time: 9 a.m. to 5 p.m. BILLING CODE 7536–01–P Programs at the September 15, 2011 Location: Room 415. deadline. Program: This meeting will review NATIONAL FOUNDATION ON THE 8. Date: November 4, 2011. applications for American Studies II in Time: 9 a.m. to 5 p.m. Preservation and Access Humanities ARTS AND THE HUMANITIES Collections and Reference Resources, Location: Room 421. National Endowment for the Arts; submitted to the Division of Program: This meeting will review President’s Committee on the Arts and Preservation and Access at the July 20, applications for U.S. Western History in the Humanities: Meeting #67 America’s Historical and Cultural 2011 deadline. Organizations Grants Program, Elizabeth Voyatzis, Pursuant to Section 10(a)(2) of the submitted to the Division of Public Federal Advisory Committee Act (Pub. Advisory Committee Management Officer. Programs at the August 17, 2011 L. 92–463), as amended, notice is hereby deadline. [FR Doc. 2011–26403 Filed 10–12–11; 8:45 am] given that a meeting of the President’s 9. Date: November 7, 2011. BILLING CODE 7536–01–P Committee on the Arts and the Time: 9 a.m. to 5 p.m. Humanities (PCAH) will be held on Location: Room 421. Tuesday, November 1, 2011, from 2 p.m. NATIONAL FOUNDATION ON THE Program: This meeting will review to 4 p.m. The meeting will be held in ARTS AND THE HUMANITIES applications for American History in the Crystal Room, The Willard America’s Media Makers Grants Federal Council on the Arts and the Intercontinental, 1401 Pennsylvania Program, submitted to the Division of Humanities Arts and Artifacts Avenue, NW., Washington, DC 20004. Public Programs at the August 17, 2011 Indemnity Panel Advisory Committee The Committee meeting will begin deadline. with welcome, introductions, and 10. Date: November 7, 2011. AGENCY: The National Endowment for announcements. Updates and Time: 9 a.m. to 5 p.m. the Humanities. discussion on recent programs and
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activities will follow. The meeting will AGENDA: Twenty-Fourth Meeting of the Dated: October 3, 2011. also include a review of PCAH ongoing National Museum and Library Service Nancy Weiss, programming for youth arts and Board Meeting: General Counsel. humanities learning, special events, and 9:30 a.m.–11:30 a.m. Executive Session [FR Doc. 2011–26455 Filed 10–12–11; 8:45 am] international cultural projects. The BILLING CODE 7036–01–M meeting will adjourn after discussion of (Closed to the Public) other business, as necessary, and closing remarks. 1:30 p.m.–4:30 p.m. Twenty-Fourth National Museum and Library NATIONAL SCIENCE FOUNDATION The President’s Committee on the Services Board Meeting: Arts and the Humanities was created by Advisory Committee for Education and Executive Order in 1982, which I. Welcome Human Resources; Notice of Meeting currently states that the ‘‘Committee II. Approval of Minutes shall advise, provide recommendations III. Financial Update In accordance with the Federal to, and assist the President, the National Advisory Committee Act (Pub. L. 92– IV. Legislative Update Endowment for the Arts, the National 463, as amended), the National Science Endowment for the Humanities, and the V. Strategic Plan Foundation announces the following Institute of Museum and Library VI. Program Updates meeting: Services on matters relating to the arts V. Board Program: Digital Name: Advisory Committee for and the humanities.’’ Communities Education and Human Resources (#1119). Any interested persons may attend as VII. Adjourn observers, on a space available basis, but Date/Time: November 2, 2011; 8:30 seating is limited. Therefore, for this (Open to the Public) a.m. to 5 p.m.; November 3, 2011; 8:30 meeting, individuals wishing to attend a.m. to 1 pm. are advised to contact Lindsey Clark of PLACE: The meetings will be held in the Place: NSF Headquarters, Room 375, the President’s Committee seven (7) New Mexico Room at the La Fonda 4201 Wilson Boulevard, Arlington VA days in advance of the meeting at (202) Hotel, 100 East San Francisco Street, 22230. 682–5409 or write to the Committee at Santa Fe, NM 87501. Telephone: (505) Type of Meeting: Open. 1100 Pennsylvania Avenue, NW., Suite 982–5511. Contact Person: Amanda Edelman, 526, Washington, DC 20506. Further FOR FURTHER INFORMATION CONTACT: National Science Foundation, 4201 information with reference to this Elizabeth Lyons, Special Events and Wilson Boulevard, Arlington, VA 22230, meeting can also be obtained from Ms. Board Liaison, Institute of Museum and (703) 292–8600, [email protected]. Clark at [email protected]. Library Services, 1800 M Street, NW., Purpose of Meeting: To provide If you need special accommodations 9th Floor, Washington, DC 20036. advice with respect to the Foundation’s due to a disability, please contact the Telephone: (202) 653–4676. science, technology, engineering, and Office of AccessAbility, National mathematics (STEM) education and SUPPLEMENTARY INFORMATION: The Endowment for the Arts, 1100 human resources programming. National Museum and Library Services Pennsylvania Avenue, NW., Suite 724, Board is established under the Museum Agenda Washington, DC 20506, (202) 682–5532, and Library Services Act, 20 U.S.C. 9101 TDY–TDD (202) 682–5496, at least November 2, 2011 (Wednesday Morning) et seq. The Board advises the Director of seven (7) days prior to the meeting. the Institute on general policies with Remarks by the Committee Chair and Dated: October 6, 2011. respect to the duties, powers, and NSF Assistant Director for Education Kathy Plowitz-Worden, authorities related to Museum and and Human Resources (EHR) Panel Coordinator, Office of Guidelines and Library Services. • Brief review of NSF strategic plan Panel Operations. The Executive Session on Monday, • Acceptance and review of [FR Doc. 2011–26424 Filed 10–12–11; 8:45 am] October 24, 2011 from 9:30 a.m. until Committee of Visitor Reports BILLING CODE ;P 11:30 a.m., will be closed pursuant to Æ Robert Noyce Teacher Scholarships subsections (c)(4) and (c)(9) of section Æ Integrative Graduate Education and 552b of Title 5, United States Code Research Traineeship Program NATIONAL FOUNDATION ON THE because the Board will consider Æ Graduate STEM Fellows in K–12 ARTS AND THE HUMANITIES information that may disclose: Trade Education secrets and commercial or financial Æ Informal Science Education Sunshine Act Meeting of the National information obtained from a person and Æ Innovative Technology Experiences Museum and Library Services Board privileged or confidential; and for Students and Teachers Æ ADVANCE: Increasing the AGENCY: information the premature disclosure of Institute of Museum and Participation and Advancement of Library Services (IMLS), NFAH. which would be likely to significantly frustrate implementation of a proposed Women in Academic Science and ACTION: Notice of meeting. agency action. The meeting from 1:30 Engineering Careers SUMMARY: This notice sets forth the p.m. until 4:30 p.m. on Monday, • Committee discussion of EHR agenda of the forthcoming meeting of October 24, 2011 is open to the public. collaborations with research directorates the National Museum and Library If you need special accommodations and offices. Services Board. This notice also due to a disability, please contact: Working Lunch describes the function of the Board. Institute of Museum and Library Notice of the meeting is required under Services, 1800 M Street, NW., 9th Fl., November 2, 2011 (Wednesday the Sunshine in Government Act. Washington, DC 20036. Telephone: Afternoon) TIME AND DATE: Monday, October 24, (202) 653–4676; TDD (202) 653–4614 at • Continued Committee discussion of 2011 from 9:30 a.m. to 11:30 a.m. and least seven (7) days prior to the meeting collaborations with research directorates from 1:30 p.m. to 4:30 p.m. date. and offices.
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• Discussion of NSF interactions with of a NRC Form 313A series form to have Submit, by December 12, 2011, external stakeholders each new individual identified as a comments that address the following Radiation Safety Officer (RSO), November 3, 2011 (Thursday Morning) questions: authorized medical physicist (AMP), 1. Is the proposed collection of • Joint session with the NSF Advisory authorized nuclear pharmacist (ANP), or Committee for Mathematical and information necessary for the NRC to authorized user or a subsequent properly perform its functions? Does the Physical Sciences. submittal of additional information for • information have practical utility? Committee visit with NSF Director one of these individuals to be identified Suresh and NSF Deputy Director with a new authorization on a limited 2. Is the burden estimate accurate? Marrett. specific medical use license. 3. Is there a way to enhance the Adjournment NRC Form 313A (RSO) is also used by quality, utility, and clarity of the medical broad scope licensees when information to be collected? Dated: October 6, 2011. identifying a new individual as an RSO 4. How can the burden of the Susanne Bolton, or adding an additional RSO information collection be minimized, authorization for the individual. This Committee Management Officer. including the use of automated submittal may occur when applying for [FR Doc. 2011–26350 Filed 10–12–11; 8:45 am] collection techniques or other forms of a new license, amendment, or renewal. BILLING CODE 7555–01–P information technology? NRC Form 313A (ANP) is also used by commercial nuclear pharmacy licensees The public may examine and have NUCLEAR REGULATORY when requesting an individual be copied for a fee publicly available COMMISSION identified for the first time as ANP. This documents, including the draft submittal may occur when applying for supporting statement, at the NRC’s [Docket No. NRC–2011–0227] a new license, amendment, or renewal. Public Document Room, Room O1–F21, Agency Information Collection 4. Who is required or asked to report: One White Flint North, 11555 Rockville Activities: Proposed Collection; All applicants requesting a license, Pike, Rockville, Maryland 20852. OMB Comment Request amendment or renewal of a license for clearance requests are available at the byproduct or source material. NRC Web site: http://www.nrc.gov/ AGENCY: Nuclear Regulatory 5. The number of annual respondents: public-involve/doc-comment/omb/ Commission. 19,432 (2,362 NRC licensees and 17,070 index.html. The document will be ACTION: Notice of pending NRC action to Agreement State licensees). available on the NRC home page site for submit an information collection 6. The number of hours needed 60 days after the signature date of this request to the Office of Management and annually to complete the requirement or notice. Comments submitted in writing Budget (OMB) and solicitation of public request: 83,558 hours (10,157 NRC and or in electronic form will be made comment. 73,401 Agreement State hours). available for public inspection. Because 7. Abstract: Applicants must submit SUMMARY: your comments will not be edited to The U.S. Nuclear Regulatory NRC Form 313, which may include the Commission (NRC) invites public remove any identifying or contact six forms in the 313A series, to obtain comment about our intention to request information, the NRC cautions you a specific license to possess, use, or the OMB’s approval for renewal of an against including any information in distribute byproduct or source material. existing information collection that is your submission that you do not want These six forms in the 313A series are: summarized below. We are required to to be publicly disclosed. Comments (1) NRC Form 313A (RSO), ‘‘Radiation publish this notice in the Federal submitted should reference Docket No. Safety Officer Training and Experience Register under the provisions of the NRC–2011–0227. You may submit your and Preceptor Attestation;’’ (2) NRC Paperwork Reduction Act of 1995 (44 comments by any of the following Form 313A (AMP), ‘‘Authorized U.S.C. Chapter 35). methods. Electronic comments: Go to Medical Physicist Training and Information pertaining to the http://www.regulations.gov and search Experience and Preceptor Attestation;’’ requirement to be submitted: for Docket No. NRC–2011–0227. Mail (3) NRC Form 313A (ANP), ‘‘Authorized 1. The title of the information comments to NRC Clearance Officer, collection: NRC Form 313, ‘‘Application Nuclear Pharmacist Training and Experience and Preceptor Attestation;’’ Tremaine Donnell (T–5 F53), U.S. for Materials License’’ and NRC Forms Nuclear Regulatory Commission, 313A (RSO), 313A (AMP), 313A (ANP), (4) NRC Form 313A (AUD), ‘‘Authorized User Training and Experience and Washington, DC 20555–0001. Questions 313A (AUD), 313A (AUT), and 313A about the information collection (AUS). Preceptor Attestation (for uses defined requirements may be directed to the 2. Current OMB approval number: under 35.100, 35.200, and 35.500);’’ (5) 3150–0120. NRC Form 313A (AUT), ‘‘Authorized NRC Clearance Officer, Tremaine 3. How often the collection is User Training and Experience and Donnell (T–5 F53), U.S. Nuclear required: There is a one-time submittal Preceptor Attestation (for uses defined Regulatory Commission, Washington, of the NRC Form 313 (which may under 35.300);’’ and (6) NRC Form 313A DC 20555–0001, by telephone at 301– include the NRC Form 313A series of (AUS), ‘‘Authorized User Training and 415–6258, or by e-mail to forms) with information to receive a Experience and Preceptor Attestation [email protected]. license. Once a specific license has been (for uses defined under 35.400 and Dated at Rockville, Maryland, this 5th day issued, there is a 10-year resubmittal of 35.600).’’ The information is reviewed of October, 2011. by the NRC to determine whether the the NRC Form 313 (which may include For the Nuclear Regulatory Commission. the NRC form 313A series of forms) with applicant is qualified by training and information for renewal of the license. experience, and has equipment, Tremaine Donnell, Amendment requests are submitted as facilities, and procedures which are NRC Clearance Officer, Office of Information needed by the licensee. adequate to protect the public health Services. There is a one-time submittal for all and safety, and minimize danger to life [FR Doc. 2011–26462 Filed 10–12–11; 8:45 am] limited specific medical use applicants or property. BILLING CODE 7590–01–P
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NUCLEAR REGULATORY Directives Branch (RADB), Office of numbers ML111160058 (Part 1, COMMISSION Administration, Mail Stop: TWB–05– Chapters 1–6) and ML111810010 (Part B01M, U.S. Nuclear Regulatory 2, Chapters 1–6). [NRC–2011–0135] Commission, Washington, DC 20555– • Federal Rulemaking Web Site: 0001. Public comments and supporting Guidelines for Preparing and • Fax comments to: RADB at 301– materials related to this notice can be Reviewing Licensing Applications for 492–3446. found at http://www.regulations.gov by the Production of Radioisotopes FOR FUTHER INFORMATION CONTACT: Mr. searching on Docket ID NRC–2011– AGENCY: Nuclear Regulatory Marcus Voth, Research and Test 0135. Commission. Reactors Licensing Branch, Division of II. Public Comments ACTION: Policy and Rulemaking, Office of Draft interim staff guidance; The NRC staff is soliciting public request for public comment. Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, comments on draft NPR–ISG–2011–002. SUMMARY: The U.S. Nuclear Regulatory Washington, DC 20005–0001; telephone: After the NRC staff considers any public Commission (NRC or the Commission) 301–415–1210; e-mail: comments received, it will make a is requesting public comment on [email protected]. determination regarding the issuance of chapters 1–6 of Draft Interim Staff the final ISG. SUPPLEMENTARY INFORMATION: Guidance (ISG), NPR–ISG–2011–002, Dated at Rockville, Maryland, this 30th day that augments NUREG–1537, part 1, I. Submitting Comments and Accessing of September, 2011. ‘‘Guidelines for Preparing and Information For the Nuclear Regulatory Commission. Reviewing Applications for the Comments submitted in writing or in Patricia A. Silva, Licensing of Non-Power Reactors: electronic form will be posted on the Chief, Research and Test Reactors Projects Format and Content,’’ for the Production NRC Web site and on the Federal Branch, Division of Policy and Rulemaking, of Radioisotopes and NUREG–1537, part rulemaking Web site, http:// Office of Nuclear Reactor Regulation. 2, ‘‘Guidelines for Preparing and www.regulations.gov. Because your [FR Doc. 2011–26472 Filed 10–12–11; 8:45 am] Reviewing Applications for the comments will not be edited to remove BILLING CODE 7590–01–P Licensing of Non-Power Reactors: any identifying or contact information, Standard Review Plan and Acceptance the NRC cautions you against including Criteria,’’ for the Production of any information in your submission that NUCLEAR REGULATORY Radioisotopes (chapters 7–18 of the ISG you do not want to be publicly COMMISSION will be published in a future Federal disclosed. [Docket No. 50–285; NRC–2011–0239] Register notice). This ISG provides The NRC requests that any party guidance to potential applicants for soliciting or aggregating comments Omaha Public Power District; Fort preparing an application to obtain a received from other persons for Calhoun Station, Unit 1; Exemption construction and operating license for a submission to the NRC inform those radioisotope production facility and the persons that the NRC will not edit their 1.0 Background Research and Test Reactor Licensing comments to remove any identifying or Omaha Public Power District (OPPD Branch (PRLB) of the Division of Policy contact information, and therefore, they or the licensee) is the holder of and Rulemaking (DPR) and the Office of should not include any information in Renewed Facility Operating License No. Nuclear Reactor Regulation (NRR) on their comments that they do not want DPR–40, which authorizes operation of the information that should be included publicly disclosed. the Fort Calhoun Station, Unit 1 (FCS). in such application. You can access publicly available The license provides, among other DATES: Submit comments by November documents related to this document things, that the facility is subject to all 14, 2011. Comments received after this using the following methods: rules, regulations, and orders of the date will be considered if it is practical • NRC’s Public Document Room Nuclear Regulatory Commission (NRC, to do so, but the Commission is able to (PDR): The public may examine and the Commission) now or hereafter in ensure consideration only for comments have copied, for a fee, publicly available effect. received on or before this date. documents at the NRC’s PDR, Room O1– The facility consists of a pressurized- ADDRESSES: Please include Docket ID F21, One White Flint North, 11555 water reactor located in Washington NRC–2011–0135 in the subject line of Rockville Pike, Rockville, Maryland County, Nebraska. your comments. For additional 20852. 2.0 Request/Action instructions on submitting comments • NRC’s Agencywide Documents and instructions on accessing Access and Management System Title 10 of the Code of Federal documents related to this action, see (ADAMS): Publicly available documents Regulations (10 CFR), part 50, Appendix ‘‘Submitting Comments and Accessing created or received at the NRC are E, Sections IV.F.2.b and c require each Information’’ in the SUPPLEMENTARY available online in the NRC Library at licensee at each site to conduct an INFORMATION section of this document. http://www.nrc.gov/reading-rm/ exercise of its onsite and offsite You may submit comments by any one adams.html. From this page, the public emergency plans biennially with full of the following methods: can gain entry into ADAMS, which participation by each offsite authority • Federal Rulemaking Web Site: Go to provides text and image files of the having a role under the radiological http://www.regulations.gov and search NRC’s public documents. If you do not response plan. During a biennial full for documents filed under Docket ID have access to ADAMS or if there are participation emergency preparedness NRC–2011–0135. Address questions problems in accessing the documents (EP) exercise, the NRC evaluates onsite about NRC dockets to Carol Gallagher, located in ADAMS, contact the NRC’s EP activities while the Federal telephone: 301–492–3668; e-mail: PDR reference staff at 1–800–397–4209, Emergency Management Agency [email protected]. 301–415–4737, or by e-mail to (FEMA) evaluates offsite EP activities. • Mail comments to: Cindy Bladey, [email protected]. The draft ISG is FEMA’s evaluation includes Chief, Rules, Announcements, and located in ADAMS under accession interactions with State and local
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emergency management agencies resume its normal biennial EP exercise 21, 2009. The results of this exercise (EMAs). schedule in 2013. revealed that the overall performance of the emergency response organization On June 6, 2011, FCS personnel 3.0 Discussion declared a Notification of Unusual demonstrated the implementation of Event (NOUE) due to flooding of the Pursuant to 10 CFR 50.12, the adequate onsite emergency plans. The Missouri River impacting FCS Commission may, upon application by NRC evaluated the 2009 biennial EP operation. The emergency condition any interested person or upon its own exercise and provided the evaluation was exited on August 29, 2011, when initiative, grant exemptions from the results in NRC integrated inspection the Missouri River water level receded requirements of 10 CFR part 50 when report 05000285/2009004 dated below the NOUE entry conditions. The the exemptions are (1) authorized by November 13, 2009 (ADAMS Accession states of Nebraska and Iowa expected law, will not present an undue risk to No. ML093170424). No NRC findings of Missouri River flood conditions to the public health and safety, and are significance with respect to the EP continue through the summer of 2011, consistent with the common defense exercise were identified. followed by an extensive cleanup/ and security; and (2) special OPPD completed several drills and an recovery process into the last quarter of circumstances are present. These special off-year exercise subsequent to the July calendar year 2011. circumstances include the impact on the 21, 2009, exercise. Details on the drills FCS successfully conducted a full- licensee’s resources in support of onsite and exercise were provided in Table 1 participation EP exercise during the recovery actions and the impact on state of Attachment 2 to the licensee’s week of July 21, 2009. The licensee had and local government agencies and exemption request dated July 29, 2011 scheduled its next full-participation response organizations directly involved (ADAMS Accession No. ML112130144). biennial EP exercise for October 18, in the response, recovery, and other The drills and off-year exercise 2011; however, due to the impact of continuing activities associated with the encompassed the principal functional existing and projected Missouri River Missouri River flooding. areas of emergency response, including flood conditions on FCS and state and Authorized by Law management, coordination of emergency local recovery efforts, the licensee is response, accident assessment, This exemption would allow the requesting a deferral of its scheduled protective action decision making, licensee to accommodate impacts on full-participation EP exercise until public alerting and notification onsite and offsite resources by calendar year 2012. procedures, and plant systems postponing the biennial EP exercise The licensee states that this diagnostics, repairs, and corrective from the previously scheduled date of actions. exemption request is justified by the October 18, 2011, until 2012. existing and projected flood conditions The NRC staff considers the intent of As stated above, 10 CFR 50.12 allows 10 CFR Part 50, Appendix E, Sections of the Missouri River at FCS and its the NRC to grant exemptions from the impact of the recovery actions on plant IV.F.2.b and c met by having conducted requirements of 10 CFR part 50. The this series of training drills. personnel, including emergency NRC staff has determined that granting preparedness and response personnel. Based on the above, no new accident of the licensee’s proposed exemption precursors are created by allowing the The licensee further states that the flood will not result in a violation of the conditions have had a significant impact licensee to postpone the biennial full Atomic Energy Act of 1954, as amended, participation EP exercise until 2012. on the EMAs in Nebraska, Iowa, and or the Commission’s regulations. local communities. State and local Thus, the probability and consequences Therefore, the exemption is authorized of postulated accidents are not government agencies and response by law. organizations required to participate in increased. Therefore, there is no undue the FCS biennial EP exercise are directly No Undue Risk to Public Health and risk to public health and safety. involved in the response, recovery, and Safety Consistent With Common Defense and other continuing activities associated The underlying purposes for Security with the flooding of the Missouri River. conducting a biennial full-participation The proposed exemption would allow It is in the best interest of the public to EP exercise are to ensure that emergency FCS to reschedule its biennial full allow continued support of these organization personnel are familiar with participation EP exercise, originally ongoing efforts by the affected their duties and to test the adequacy of scheduled for October 18, 2011, to a government agencies and response emergency plans. Additionally, 10 CFR date mutually agreeable to the NRC, organizations without unnecessary part 50 Appendix E, Section IV.F.2.b OPPD, and other affected offsite distractions. requires licensees to maintain adequate agencies in 2012. This change to the EP By letters dated July 28, 2011, the emergency response capabilities during exercise schedule has no relation to Nebraska and Iowa EMAs formally the intervals between biennial EP security issues. Therefore, the common requested FEMA to defer the evaluation exercises by conducting drills to defense and security is not impacted by of offsite response organizations at FCS exercise the principal functional areas this exemption. (Agencywide Documents Access and of emergency response. In order to Management System (ADAMS) accommodate the scheduling of full Special Circumstances Accession Nos. ML112521454 and participation EP exercises, the NRC has Pursuant to 10 CFR 50.12(a)(2), the ML112521462, respectively). By letters allowed licensees to schedule the NRC will consider granting an to the Nebraska and Iowa EMAs dated exercises at any time during the exemption to the regulations if special August 18, 2011 (ADAMS Accession calendar biennium. Conducting the FCS circumstances are present. This Nos. ML112420741 and ML112420753, full-participation EP exercise in exemption request meets the special respectively), FEMA agreed to the calendar year 2012 places the exercise circumstances of paragraphs: proposed postponement of the 2011 past the previously scheduled biennial (a)(2)(ii) Application of the regulation in plume exposure pathway EP exercise calendar year of 2011. the particular circumstances would not serve until 2012. The previous biennial full the underlying purpose of the rule or is not Only temporary relief from the participation EP exercise of the FCS necessary to achieve the underlying purpose regulations is requested. FCS will emergency plan was performed on July of the rule;
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(a)(2)(iv) The exemption would result in year 2012 on a date mutually agreeable proposed exemption does not alter the benefit to the public health and safety that to the NRC, OPPD, and other affected design, function or operation of any compensates for any decrease in safety that offsite agencies. OPPD is only plant equipment. Therefore, this may result from the grant of the exemption; requesting temporary relief from the exemption does not involve a significant (a)(2)(v) The exemption would provide regulation as FCS will resume its only temporary relief from the applicable reduction in the margin of safety. normal biennial EP exercise schedule in regulation and the licensee or applicant has Based on the above, the NRC staff 2013. made good faith efforts to comply with the concludes that the proposed exemption regulation. Full participation in the biennial EP exercise of affected offsite government does not involve a significant hazards With respect to 10 CFR 50.12(a)(2)(ii), agencies and response organizations had consideration under the standards set the underlying purpose of 10 CFR part been established and coordinated until forth in 10 CFR 50.92(c), and 50, Appendix E, Sections IV.F.2.b and c it was determined that participation in accordingly, a finding of ‘‘no significant are to ensure that emergency response the biennial exercise would hinder the hazards consideration’’ is justified. organization personnel are familiar with offsite agencies in the response, The NRC staff has also determined their duties, to test the adequacy of recovery, and other activities associated emergency plans, and to identify and that the exemption involves no with the Missouri River flooding. The significant increase in the amounts, and correct weaknesses. The intent of this licensee has made good faith efforts to requirement is also met by the no significant change in the types, of comply with the regulations as the any effluents that may be released scheduled emergency plan participation conditions necessitating the requested offsite; that there is no significant drills and exercises, and provides a exemption could not have been foreseen increase in individual or cumulative benefit by allowing for more and are beyond the control of OPPD opportunities for training of response personnel. The requested exemption occupational radiation exposure; that personnel. would provide only temporary relief there is no significant construction The training drills and off-year from the applicable regulation and the impact; and there is no significant exercise conducted at FCS since the last licensee has made a good faith effort to increase in the potential for or biennial full participation EP exercise comply with the regulation. Therefore, consequences from a radiological on July 21, 2009, have demonstrated the the special circumstances of 10 CFR accident. Furthermore, the requirement capability of onsite and offsite 50.12(a)(2)(v) are satisfied. from which the licensee will be personnel, meeting the intent of these Thus, this exemption request meets exempted involves scheduling requirements. These measures are the special circumstances of 10 CFR requirements. Accordingly, the adequate to maintain an acceptable level 50.12(a)(2). exemption meets the eligibility criteria of emergency preparedness, satisfying 4.0 Environmental Consideration for categorical exclusion set forth in 10 the underlying purpose of the rule. CFR 51.22(c)(25). Pursuant to 10 CFR Therefore, the special circumstances of This exemption authorizes a one-time 51.22(b) no environmental impact 10 CFR 50.12(a)(2)(ii) are satisfied. exemption from the requirements of 10 With respect to 10 CFR 50.12(a)(2)(iv), statement or environmental assessment CFR 50 Appendix E, Sections IV.F.2.b need be prepared in connection with the the licensee states that the state and and c for FCS. The NRC staff has issuance of the exemption. local government agencies and response determined that this exemption involves organizations that are required to no significant hazards considerations: 5.0 Conclusion participate in the FCS biennial EP (1) The proposed exemption is limited exercise are directly involved in the to postponing the 2011 biennial full- Accordingly, the Commission has response, recovery, and other participation EP exercise for FCS until determined that, pursuant to 10 CFR continuing activities associated with the 2012 on a one-time only basis. The 50.12, the exemption is authorized by Missouri River floods, straining the proposed exemption does not make any law, will not present an undue risk to resources of the emergency management changes to the facility or operating the public health and safety, and is teams. Therefore, requiring them to procedures and does not alter the consistent with the common defense divert their efforts to perform an EP design, function or operation of any and security. Also, special exercise may result in undue stress and plant equipment. Therefore, issuance of circumstances are present. Therefore, risk to the general public and plant this exemption does not increase the the Commission, hereby grants OPPD an personnel. Allowing the affected state probability or consequences of an exemption from the requirements of 10 and local government agencies, and accident previously evaluated. CFR part 50, Appendix E, sections response organizations to continue their (2) The proposed exemption is limited IV.F.2.b and c to conduct the biennial undistracted efforts in response to the to postponing the 2011 full- full participation EP exercise required Missouri River flood conditions is in the participation EP biennial exercise for for 2011, and to permit the exercise to best interest of the public. Therefore, the FCS until 2012 on a one-time only basis. be conducted by 2012 for FCS. special circumstances of 10 CFR The proposed exemption does not make 50.12(a)(2)(iv) are satisfied. any changes to the facility or operating This exemption is effective upon With respect to 10 CFR 50.12(a)(2)(v), procedures and would not create any issuance. special circumstances are present new accident initiators. The proposed Dated at Rockville, Maryland, this 5th day whenever the exemption would provide exemption does not alter the design, of October 2011. only temporary relief from the function or operation of any plant For the Nuclear Regulatory Commission. applicable regulation and the licensee or equipment. Therefore, this exemption applicant has made good faith efforts to does not create the possibility of a new Michele G. Evans, comply with the regulation. The or different kind of accident from any Director, Division of Operating Reactor requested exemption is a one-time accident previously evaluated. Licensing, Office of Nuclear Reactor schedule exemption to allow deferral of (3) The proposed exemption is limited Regulation. the biennial full participation EP to postponing the 2011 biennial full- [FR Doc. 2011–26488 Filed 10–12–11; 8:45 am] exercise of the FCS emergency plan participation EP exercise for FCS until BILLING CODE 7590–01–P from October 18, 2011, until calendar 2012 on a one-time only basis. The
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NUCLEAR REGULATORY being withheld from public disclosure. redacted version of the licensee’s letter COMMISSION Publicly available versions of the dated September 30, 2011, is available licensee’s letters dated December 31, in ADAMS Accession No. [Docket No. 50–285; NRC–2010–0087] 2009, and January 21, 2010 are available ML112760629. In its letter dated Omaha Public Power District, Fort in the Agencywide Documents September 30, 2011, FCS stated that Calhoun Station, Unit 1; Exemption Management and Access System interim security measures can be, and (ADAMS) at Accession Nos. will be taken to achieve compliance 1.0 Background ML100050032 and ML100810124, with one of the remaining two Omaha Public Power District (OPPD respectively. By letter dated March 23, requirements that were addressed in its or the licensee) is the holder of Facility 2010 (ADAMS Accession No. letter dated September 2, 2011, leaving Operating License No. DPR–40 which ML100630447), the NRC granted a only one requirement for which authorizes operation of the Fort Calhoun previous exemption to OPPD for compliance cannot be met. Therefore, specific items subject to the revised rule the licensee requested a schedular Station, Unit 1 (FCS). The license in 10 CFR 73.55, allowing the exemption for one requirement until provides, among other things, that the implementation to be deferred until November 5, 2013. Granting this facility is subject to all rules, October 5, 2011. exemption for extending the regulations, and orders of the U.S. Subsequent to issuance of the implementation date for the one Nuclear Regulatory Commission (NRC scheduler exemption and prior to remaining item would allow the or the Commission) now or hereafter in completion of the planned physical licensee to complete the modifications effect. protection program upgrades, FCS for a more conservative approach for The facility consists of one experienced sustained flooding achieving full compliance. pressurized-water reactor located in conditions beginning in the spring and Washington County, Nebraska. continuing through the summer of 2011. 3.0 Discussion of Part 73 Schedule Exemptions From the October 5, 2011, 2.0 Request/Action These abnormal flooding conditions required the cessation of all work Full Implementation Date Title 10 of the Code of Federal needed to complete the planned Pursuant to 10 CFR 73.55(a)(1), ‘‘By Regulations (10 CFR) Part 73, ‘‘Physical physical protection program upgrades at March 31, 2010, each nuclear power protection of plants and materials,’’ FCS and necessitated the diversion of reactor licensee, licensed under 10 CFR Section 73.55, ‘‘Requirements for all available resources to perform part 50, shall implement the physical protection of licensed activities essential emergency operations and requirements of this section through its in nuclear power reactors against other compensatory measures. These Commission-approved Physical Security radiological sabotage,’’ published on actions are deemed necessary to provide Plan, Training and Qualification Plan, March 27, 2009, effective May 26, 2009, high assurance that activities involving Safeguards Contingency Plan, and Cyber with a full implementation date of special nuclear material are not inimical Security Plan referred to collectively March 31, 2010, requires licensees to to the common defense and security and hereafter as ‘security plans.’ ’’ Pursuant protect, with high assurance, against do not constitute an unreasonable risk to 10 CFR 73.55(b)(1), ‘‘the licensee radiological sabotage by designing and to the public health and safety. shall establish and maintain a physical implementing comprehensive site By letter dated September 2, 2011, the protection program, to include a security programs. The amendments to licensee submitted a request for a security organization, which will have 10 CFR 73.55 published in the Federal schedular exemption to the compliance as its objective to provide high Register on March 27, 2009 (74 FR date identified in 10 CFR 73.55(a)(1) to assurance that activities involving 13926), establish and update generically implement two of the original three special nuclear material are not inimical applicable security requirements similar requirements stated in 10 CFR part 73 to the common defense and security and to those previously imposed by for FCS. Portions of the September 2, do not constitute an unreasonable risk Commission orders issued after the 2011, letter contain SUNSI (security- to the public health and safety.’’ terrorist attacks of September 11, 2001, related) and, accordingly, those portions Pursuant to 10 CFR 73.5, the and implemented by licensees. In are withheld from public disclosure. A Commission may, upon application by addition, the amendments to 10 CFR redacted version of the licensee’s letter any interested person or upon its own 73.55 include additional requirements dated September 2, 2011, is available in initiative, grant exemptions from the to further enhance site security based ADAMS Accession No. ML11250A059. requirements of 10 CFR part 73 when upon insights gained from In its letter dated September 2, 2011, the the exemptions are authorized by law implementation of the post September licensee stated that FCS will complete and will not endanger life or property or 11, 2001, security orders. It is from three one of the projects by October 5, 2011, the common defense and security, and of these new requirements that OPPD and the new requested compliance date are otherwise in the public interest. originally sought an exemption from the for the remaining two requirements is NRC approval of this exemption, as March 31, 2010, implementation date. November 5, 2013. noted above, would allow an extension All other physical security requirements By e-mail dated September 28, 2011, from October 5, 2011, until November 5, established by this recent rulemaking the NRC staff requested additional 2013, of the implementation date for have been implemented by the licensee. information from the licensee. The NRC one specific requirement of the new By letter dated December 31, 2009, as request contained SUNSI (security- rule. As stated above, 10 CFR 73.5 supplemented by letter dated January related) and, accordingly, is withheld allows the NRC to grant exemptions 21, 2010, the licensee requested an from public disclosure. By letter dated from the requirements of 10 CFR part exemption in accordance with 10 CFR September 30, 2011, the licensee 73. The NRC staff has determined that 73.5, ‘‘Specific exemptions.’’ Portions of responded to the NRC request for granting of the licensee’s proposed the licensee’s letters dated December 31, additional information. Portions of the exemption will not result in a violation 2009, and January 21, 2010, contain licensee’s letter dated September 30, of the Atomic Energy Act of 1954, as sensitive unclassified non-safeguards 2011, contain SUNSI (security-related) amended, or the Commission’s information (SUNSI) (security-related) and, accordingly, those portions are regulations. Therefore, the exemption is and, accordingly, those portions are withheld from public disclosure. A authorized by law.
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In the draft final rule sent to the (security-related) regarding the site compliance, the licensee is reminded Commission, the NRC staff proposed security plan, details of the specific that it is responsible for determining the that the requirements of the new requirement of the regulation that the appropriate licensing mechanism (i.e., regulation be met within 180 days. The site cannot be in compliance with by the 10 CFR 50.54(p) or 10 CFR 50.90) for Commission directed a change from 180 October 5, 2011 deadline, and a timeline incorporation of all necessary changes days to approximately 1 year for with critical path activities that will to its security plans. licensees to fully implement the new bring the licensee into full compliance Pursuant to 10 CFR 51.32, ‘‘Finding of requirements. This change was by November 5, 2013. The timeline no significant impact,’’ the Commission incorporated into the final rule. From provides milestone dates for has previously determined that the this, it is clear that the Commission engineering, planning and procurement, granting of this exemption will not have wanted to provide a reasonable implementation, startup and testing, a significant effect on the quality of the timeframe for licensees to reach full engineering closeout, and project human environment (January 3, 2011; compliance. closeout. Redacted versions of the 76 FR 187). As noted in the final rule, the licensee’s letters dated September 2 and This exemption is effective upon Commission also anticipated that 30, 2011, including the enclosure/ issuance. licensees would have to conduct site- attachment, are publicly available at specific analyses to determine what Dated at Rockville, Maryland, this 5th day ADAMS Accession Nos. ML11250A059 of October 2011. changes were necessary to implement and ML112760629, respectively. the rule’s requirements, and that Notwithstanding the schedular For the Nuclear Regulatory Commission. changes could be accomplished through exemptions for this limited requirement, Michele G. Evans, a variety of licensing mechanisms, the licensee will continue to be in Director, Division of Operating Reactor including exemptions. Since issuance of compliance with all other applicable Licensing, Office of Nuclear Reactor the final rule, the Commission has physical security requirements as Regulation. rejected a request to generically extend described in 10 CFR 73.55 and reflected [FR Doc. 2011–26466 Filed 10–12–11; 8:45 am] the rule’s compliance date for all in its current NRC-approved physical BILLING CODE 7590–01–P operating nuclear power plants, but security program. By November 5, 2013, noted that the Commission’s regulations FCS will be in full compliance with all provide mechanisms for individual the regulatory requirements of 10 CFR NUCLEAR REGULATORY licensees, with good cause, to apply for 73.55, as issued on March 27, 2009. COMMISSION relief from the compliance date as 4.0 Conclusion for Part 73 Schedule documented in the letter from R. W. [Docket No. 70–7022; NRC–2011–0236] Exemption Request Borchardt (NRC) to M. S. Fertel (Nuclear Energy Institute) dated June 4, 2009. The NRC staff has reviewed the Notice of Acceptance of Application The licensee’s request for an exemption licensee’s submittals and concludes that for Special Nuclear Materials License is, therefore, consistent with the the licensee has provided adequate From Passport Systems, Inc., approach set forth by the Commission justification for its request for an Opportunity To Request a Hearing, and and discussed in the NRC letter dated extension of the compliance date with Order Imposing Procedures for Access June 4, 2009. regard to one specified requirement of to Sensitive Unclassified Non- 10 CFR 73.55 until November 5, 2013. Safeguards Information for Contention FCS Schedule Exemption Request Accordingly, the Commission has Preparation The licensee provided detailed determined that pursuant to 10 CFR AGENCY: Nuclear Regulatory information in the enclosure/attachment 73.5, ‘‘Specific exemptions,’’ exemption Commission. to its letters dated September 2 and 30, from the October 5, 2011, compliance 2011, requesting an exemption. The date is authorized by law and will not ACTION: Notice of license application, licensee is requesting additional time to endanger life or property or the common opportunity to request a hearing, and implement one specific requirement of defense and security, and is otherwise Order Imposing Procedures for Access the new rule due to sustained abnormal in the public interest. Therefore, the to Sensitive Unclassified Non- flooding conditions throughout the Commission hereby grants the requested Safeguards Information for Contention spring and summer of 2011. The exemption. Preparation. flooding conditions required the The NRC staff has determined that the cessation of all work needed to long-term benefits that will be realized DATES: Requests for a hearing or Leave complete the planned enhancements to when the FCS security modifications are to Intervene must be filed by December FCS’s physical protection program and complete justifies exceeding the full 12, 2011. Any potential party as defined necessitated diversion of all available compliance date with regard to the in Title 10 of the Code of Federal resources to perform essential specified requirements of 10 CFR 73.55. Regulations (10 CFR) 2.4 who believes emergency operations and other Therefore, the NRC concludes that the access to Sensitive Unclassified Non- compensatory measures. The length of licensee’s actions are in the best interest Safeguards Information (SUNSI) the extension is due to flood damage of protecting the public health and information is necessary to respond to and the amount of engineering and safety through the security changes that this notice must request document design, material procurement, and will result from granting this exemption. access by October 24, 2011. construction and installation activities As per the licensee’s request and the ADDRESSES: You can access publicly involved, while allowing for inclement NRC’s regulatory authority to grant an available documents related to this weather. The licensee’s submittals exemption from the October 5, 2011, document using the following methods: describe a comprehensive plan to deadline for the one item specified in • NRC’s Public Document Room upgrade the security capabilities of the the enclosure/attachment to FCS’s (PDR): The public may examine and FCS site and provide a timeline for letters dated September 2 and 30, 2011, have copied, for a fee, publicly available achieving full compliance with the new the licensee is required to be in full documents at the NRC’s PDR, O1–F21, regulation. The enclosure/attachment to compliance with 10 CFR 73.55 by One White Flint North, 11555 Rockville the licensee’s letters contain SUNSI November 5, 2013. In achieving Pike, Rockville, Maryland 20852.
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• NRC’s Agencywide Documents facilities. Following an administrative A petition for Leave to Intervene must Access and Management System review, the NRC requested the also include a specification of the (ADAMS): Publicly available documents Applicant to revise its application to contentions that the petitioner seeks to created or received at the NRC are include elements essential to have litigated in the hearing. For each available online in the NRC Library at conducting a detailed technical review. contention, the petitioner must provide http://www.nrc.gov/reading-rm/adams. The Applicant submitted a revised a specific statement of the issue of law html. From this page, the public can license application, dated February 8, or fact to be raised or controverted, as gain entry into ADAMS, which provides 2011. By letter dated March 1, 2011, the well as a brief explanation of the basis text and image files of the NRC’s public NRC staff found the revised license for the contention. Additionally, the documents. If you do not have access to application acceptable to begin a petitioner must demonstrate that the ADAMS or if there are problems in detailed technical review. The issue raised by each contention is accessing the documents located in application has been docketed in Docket within the scope of the proceeding, and ADAMS, contact the NRC’s PDR No. 70–7022. is material to the findings that NRC reference staff at 1–800–397–4209, 301– If the NRC approves the license must make to support the granting of a 415–4737, or by e-mail to pdr.resource@ application, the basis for approval will license in response to the application. nrc.gov. be documented in a Safety Evaluation The petition must also include a concise • Federal Rulemaking Web Site: Report (SER) supporting the issuance of statement of the alleged facts or expert Public comments and supporting a new NRC license. The SER would opinions which support the position of materials related to this final rule can be contain the findings required by the the petitioner, and on which the found at http://www.regulations.gov by Atomic Energy Act of 1954, as amended petitioner intends to rely at the searching on Docket ID NRC–2011– (the Act), and the NRC’s regulations, for hearing—together with references to the 0236. Address questions about NRC issuing an SNM license. The SER would specific sources and documents on dockets to Carol Gallagher, telephone: also include a determination of the need which the petitioner intends to rely. 301–492–3668; e-mail: Carol.Gallagher@ to complete an environmental Finally, the petition must provide nrc.gov. assessment based on the proposed sufficient information to show that a genuine dispute exists with the FOR FURTHER INFORMATION CONTACT: action. applicant on a material issue of law or Richard Thompson, Project Manager, III. Opportunity To Request a Hearing; fact, including references to specific Fuel Manufacturing Branch, Division of Petitions for Leave To Intervene portions of the license application that Fuel Cycle Safety and Safeguards, Office the petitioner disputes and the of Nuclear Material Safety and Requirements for submitting hearing supporting reasons for each dispute, or, Safeguards, U.S. Nuclear Regulatory requests and petitions for Leave to if the petitioner believes that the license Commission, 11555 Rockville Pike, Intervene are found in 10 CFR 2.309, application fails to contain information EBB2–C40M, Rockville, Maryland ‘‘Hearing Requests, Petitions to on a relevant matter as required by law, 20852; telephone: 301–492–3220; e- Intervene, Requirements for Standing, and Contentions.’’ Interested persons the identification of each failure, and mail: [email protected]. the supporting reasons for the should consult 10 CFR 2.309, which is SUPPLEMENTARY INFORMATION: petitioner’s belief. Each contention must available at the NRC’s PDR, located at be one that, if proven, would entitle the I. Introduction One White Flint North, 11555 Rockville petitioner to relief. The U.S. Nuclear Regulatory Pike, Room O1–F21, Rockville, MD Those permitted to intervene become Commission (NRC or the Commission) 20852. You may also call the PDR at 1– parties to the proceeding, subject to any has accepted for detailed technical 800–397–4209 or 301–415–4737. The limitations in the order granting Leave review an application for a new license NRC regulations are also accessible to Intervene, and have the opportunity for the possession and use of special electronically from the NRC’s Web site to participate fully in the conduct of the nuclear material (SNM), submitted by at http://www.nrc.gov. hearing with respect to resolution of Passport Systems, Inc. (Passport or the Any person whose interest may be that person’s admitted contentions, Applicant). The license would authorize affected by this proceeding, and who including the opportunity to present performance testing of radiation desires to participate as a party in the evidence and to submit a cross- detection systems for locating SNM, proceeding must file a written petition examination plan for cross-examination under a project sponsored by the for Leave to Intervene. As required by of witnesses, consistent with NRC’s Domestic Nuclear Detection Office 10 CFR 2.309, a petition for leave to regulations, policies, and procedures. (DNDO) of the U.S. Department of intervene shall set forth with The Atomic Safety and Licensing Board Homeland Security (DHS). The particularity the interest of the (the Licensing Board) will set the time Applicant requested the new license for petitioner in the proceeding and how and place for any pre-hearing a period of 10 years. This license that interest may be affected by the conferences and evidentiary hearings, application, if approved, would results of the proceeding. The petition and the appropriate notices will be authorize Passport to possess and use must provide the name, address, and provided. special nuclear materials under 10 CFR telephone number of the petitioner; and Petitions for leave to intervene must Part 70, ‘‘Domestic Licensing of Special specifically explain the reasons why be submitted no later than 60 days from Nuclear Material.’’ intervention should be permitted with October 13, 2011. Non-timely petitions particular reference to the following for Leave to Intervene and contentions, II. Discussion factors: (1) The nature of the petitioner’s amended petitions, and supplemental In its application, dated November 5, right under the Act to be made a party petitions will not be entertained, absent 2010, Passport requested a license to to the proceeding; (2) the nature and a determination by the Commission, the possess and use SNM to conduct tests extent of the petitioner’s property, Licensing Board or a Presiding Officer of new technology for use in detection financial, or other interest in the that the petition should be granted and/ systems. The SNM would be used as test proceeding; and (3) the possible effect of or the contentions should be admitted objects for concept demonstrations and any order that may be entered in the based upon a balancing of the factors characterization testing at the Passport proceeding on the petitioner’s interest. specified in 10 CFR 2.309(c)(1)(i)–(viii).
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A State, county, municipality, [email protected], or by telephone at 301– the submitter an e-mail notice Federally recognized Indian Tribe, or 415–1677, to request (1) a digital ID confirming receipt of the document. The agencies thereof, may submit a petition certificate, which allows the participant E-Filing system also distributes an e- to the Commission to participate as a (or its counsel or representative) to mail notice that provides access to the party under 10 CFR 2.309(d)(2). The digitally sign documents and access the document to the NRC Office of the petition should state the nature and E-Submittal server for any proceeding in General Counsel and any others who extent of the petitioner’s interest in the which it is participating; and (2) advise have advised the Office of the Secretary proceeding. The petition should be the Secretary that the participant will be that they wish to participate in the submitted to the Commission by submitting a request or petition for proceeding, so that the filer need not December 12, 2011. The petition must hearing (even in instances in which the serve the documents on those be filed in accordance with the filing participant, or its counsel or participants separately. Therefore, instructions in Section IV of this representative, already holds an NRC- applicants and other participants (or document, and should meet the issued digital ID certificate). Based upon their counsel or representative) must requirements for petitions for Leave to this information, the Secretary will apply for and receive a digital ID Intervene set forth in this section, establish an electronic docket for the certificate before a hearing request/ except that State and Federally hearing in this proceeding if the petition to intervene is filed so that they recognized Indian tribes do not need to Secretary has not already established an can obtain access to the document via address the standing requirements in 10 electronic docket. the E-Filing system. CFR 2.309(d)(1) if the facility is located Information about applying for a A person filing electronically using within its boundaries. The entities listed digital ID certificate is available on the agency’s adjudicatory E-Filing above could also seek to participate in NRC’s public Web site at http://www. system may seek assistance by a hearing as a non-party, pursuant to 10 nrc.gov/site-help/e-submittals/apply- contacting the NRC Meta System Help CFR 2.315(c). certificates.html. System requirements Desk through the ‘‘Contact Us’’ link Any person who does not wish, or is for accessing the E–Submittal server are located on the NRC Web site at http:// not qualified, to become a party to this detailed in NRC’s, ‘‘Guidance for www.nrc.gov/site-help/e-submittals. proceeding may request permission to Electronic Submission,’’ which is html, by e-mail at MSHD.Resource@nrc. make a limited appearance pursuant to available on the agency’s public Web gov, or by a toll-free call at (866) 672– the provisions of 10 CFR 2.315(a). A site at http://www.nrc.gov/site-help/e- 7640. The NRC Meta System Help Desk person making a limited appearance submittals.html. Participants may is available between 8 a.m. and 8 p.m., may make an oral or written statement attempt to use other software not listed Eastern Time, Monday through Friday, of position on the issues, but may not on the Web site, but should note that the excluding government holidays. otherwise participate in the proceeding. NRC’s E-Filing system does not support Participants who believe that they A limited appearance may be made at unlisted software; and the NRC’s Meta have a good cause for not submitting any session of the hearing or at any pre- System Help Desk will not be able to documents electronically must file an hearing conference, subject to such offer assistance in using unlisted exemption request, in accordance with limits and conditions as may be software. 10 CFR 2.302(g), with their initial paper imposed by the Licensing Board. If a participant is electronically filing requesting authorization to Persons desiring to make a limited submitting a document to the NRC in continue to submit documents in paper appearance are requested to inform the accordance with the E-Filing rule, the format. Such filings must be submitted Secretary of the Commission by participant must file the document by: (1) First class mail addressed to the December 12, 2011. using the NRC’s online, Web-based Office of the Secretary of the submission form. In order to serve Commission, U.S. Nuclear Regulatory IV. Electronic Submissions (E-Filing) documents through EIE, users will be Commission, Washington, DC 20555– All documents filed in NRC’s required to install a Web browser plug- 0001, Attention: Rulemaking and adjudicatory proceedings, including a in from the NRC Web site. Further Adjudications Staff; or (2) courier, request for hearing, a petition for Leave information on the Web-based express mail, or expedited delivery to Intervene, any motion or other submission form, including the service to the Office of the Secretary, document filed in the proceeding prior installation of the Web browser plug-in, Sixteenth Floor, One White Flint North, to the submission of a request for is available on the NRC’s public Web 11555 Rockville Pike, Rockville, hearing or petition to intervene, and any site at http://www.nrc.gov/site-help/e- Maryland, 20852, Attention: document filed by interested submittals.html. Rulemaking and Adjudications Staff. governmental entities participating Once a participant has obtained a Participants filing a document in this under 10 CFR 2.315(c), must be filed in digital ID certificate and a docket has manner are responsible for serving the accordance with the NRC E-Filing rule been created, the participant can then document on all other participants. (72 FR 49139, August 28, 2007). The E- submit a request for hearing or petition Filing is considered complete by first- Filing process requires participants to for leave to intervene. Submissions class mail as of the time of deposit in submit and serve all adjudicatory should be in Portable Document Format the mail, or by courier, express mail, or documents over the Internet, or in some (PDF) in accordance with NRC guidance expedited delivery service upon cases, to mail copies on electronic available on the NRC public Web site at depositing the document with the storage media. Participants may not http://www.nrc.gov/site-help/e- provider of the service. A presiding submit paper copies of their filings submittals.html. A filing is considered officer, having granted an exemption unless they seek an exemption in complete at the time the documents are request from using E-Filing, may require accordance with the procedures submitted through the NRC’s E–Filing a participant or party to use E-Filing if described below. system. To be timely, an electronic the presiding officer subsequently To comply with the procedural filing must be submitted to the E-Filing determines that the reason for granting requirements of E-Filing, at least ten system no later than 11:59 p.m. Eastern the exemption from use of E-Filing no (10) days prior to the filing deadline, the Time on the due date. Upon receipt of longer exists. participant should contact the Office of a transmission, the E-Filing system Documents submitted in adjudicatory the Secretary by e-mail at hearing. time-stamps the document and sends proceedings will appear in NRC’s
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electronic hearing docket, which is The request must include the following the petitioner may file its SUNSI available to the public at http://ehd1. information: contentions by that later deadline. nrc.gov/EHD/, unless excluded pursuant (1) A description of the licensing G. Review of Denials of Access. to an order of the Commission or the action with a citation to this Federal (1) If the request for access to SUNSI presiding officer. Participants are Register notice; is denied by the NRC’s staff, either after requested not to include personal (2) The name and address of the a determination on standing and need privacy information, such as social potential party and a description of the for access or after a determination on security numbers, home addresses, or potential party’s particularized interest trustworthiness and reliability, the home telephone numbers in their that could be harmed by the action NRC’s staff shall immediately notify the filings, unless an NRC regulation or identified in C.(1); requestor in writing, briefly stating the other law requires submission of such (3) The identity of the individual or reason(s) for the denial. information. With respect to entity requesting access to SUNSI and (2) The requester may challenge the copyrighted works, except for limited the requester’s basis for the need for the NRC staff’s adverse determination by excerpts that serve the purpose of the information in order to meaningfully filing a challenge within 5 days of adjudicatory filings and would participate in this adjudicatory receipt of that determination with: (a) constitute a Fair Use application, proceeding. In particular, the request The presiding officer designated in this participants are requested not to include must explain why publicly-available proceeding; (b) if no presiding officer copyrighted materials in their versions of the information requested has been appointed, the Chief submission. would not be sufficient to provide the Administrative Judge, or if he or she is basis and specificity for a proffered Order Imposing Procedures for Access unavailable, another administrative contention; to Sensitive Unclassified Non- judge, or an administrative law judge D. Based on an evaluation of the with jurisdiction pursuant to 10 CFR Safeguards Information (SUNSI) for information submitted under paragraph Contention Preparation 2.318(a); or (c) if another officer has C.(3), the NRC staff will determine been designated to rule on information A. This Order contains instructions within 10 days of receipt of the request access issues, with that officer. regarding how potential parties to this whether: H. Review of Grants of Access. A proceeding may request access to (1) There is a reasonable basis to party other than the requester may documents containing SUNSI. believe the petitioner is likely to challenge an NRC staff’s determination B. Within 10 days after publication of establish standing to participate in this granting access to SUNSI whose release this Notice of Acceptance and NRC proceeding; and Opportunity to Request a Hearing, any (2) The requestor has established a would harm that party’s interest potential party who believes access to legitimate need for access to SUNSI. independent of the proceeding. Such a SUNSI is necessary to respond to this E. If the NRC staff determines that the challenge must be filed with the Chief notice may request such access. A requestor satisfies both D.(1) and D.(2) Administrative Judge within 5 days of ‘‘potential party’’ is any person who above, the NRC staff will notify the the notification by the NRC staff of its intends to participate as a party by requestor in writing that access to grant of access. demonstrating standing and filing an SUNSI has been granted. The written If challenges to the NRC staff’s admissible contention under 10 CFR notification will contain instructions on determinations are filed, these 2.309. Requests for access to SUNSI how the requestor may obtain copies of procedures give way to the normal submitted later than 10 days after the requested documents, and any other process for litigating disputes publication will not be considered, conditions that may apply to access to concerning access to information. The absent a showing of good cause for the those documents. These conditions may availability of interlocutory review by late filing addressing why the request include, but are not limited to, the the Commission of orders ruling on could not have been filed earlier. signing of a Non-Disclosure Agreement such NRC staff’s determinations C. The requester shall submit a letter or Affidavit, or Protective Order 2 setting (whether granting or denying access) is requesting permission to access SUNSI forth terms and conditions to prevent governed by 10 CFR 2.311.3 to the Office of the Secretary, U.S. the unauthorized or inadvertent I. The Commission expects that the Nuclear Regulatory Commission, disclosure of SUNSI by each individual NRC staff and presiding officers (and Washington, DC 20555–0001, Attention: who will be granted access to SUNSI. any other reviewing officers) will Rulemakings and Adjudications Staff; F. Filing of Contentions. Any consider and resolve requests for access and provide a copy to the Associate contentions in these proceedings that to SUNSI, and motions for protective General Counsel for Hearings, are based upon the information received orders, in a timely fashion in order to Enforcement and Administration, Office as a result of the request made for minimize unnecessary delays in of the General Counsel, Washington, DC SUNSI must be filed by the requestor no identifying those petitioners who have 20555–0001. The expedited delivery or later than 25 days after the requestor is standing and who have propounded courier mail address for both offices is: granted access to that information. contentions meeting the specificity and U.S. Nuclear Regulatory Commission, However, if more than 25 days remain basis requirements in 10 CFR Part 2. 11555 Rockville Pike, Rockville, between the date the petitioner is Attachment 1 to this Order summarizes Maryland 20852. The e-mail address for granted access to the information and the general target schedule for the Office of the Secretary and the the deadline for filing all other processing and resolving requests under Office of the General Counsel are contentions (as established in the Notice these procedures. [email protected] and of Hearing or Opportunity for Hearing), It is so ordered: [email protected], respectively.1 2 Any motion for Protective Order or draft Non- 3 Requesters should note that the filing 1 While a request for Hearing or Petition to Disclosure Affidavit or Agreement for SUNSI must requirements of the NRC’s E-Filing Rule (72 FR Intervene in this proceeding must comply with the be filed with the presiding officer or the Chief 49139; August 28, 2007) apply to appeals of NRC filing requirements of the NRC’s ‘‘E-Filing Rule,’’ Administrative Judge, if the presiding officer has staff’s determinations (because they must be served the initial request to access SUNSI under these not yet been designated, within 30 days of the on a presiding officer or the Commission, as procedures should be submitted as described in this deadline for the receipt of the written access applicable), but not to the initial SUNSI request paragraph. request. submitted to the NRC staff under these procedures.
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Dated at Rockville, Maryland, this 6th day For the Commission. of October, 2011. Annette L. Vietti-Cook, Secretary of the Commission.
ATTACHMENT 1—GENERAL TARGET SCHEDULE FOR PROCESSING AND RESOLVING REQUESTS FOR ACCESS TO SENSITIVE UNCLASSIFIED NON-SAFEGUARDS INFORMATION IN THIS PROCEEDING
Day Event/Activity
0 ...... Publication of Federal Register notice of hearing and opportunity to petition for leave to intervene, including order with in- structions for access requests. 10 ...... Deadline for submitting requests for access to Sensitive Unclassified Non-Safeguards Information (SUNSI) with informa- tion: supporting the standing of a potential party identified by name and address; describing the need for the informa- tion in order for the potential party to participate meaningfully in an adjudicatory proceeding. 60 ...... Deadline for submitting petition for intervention containing: (i) Demonstration of standing; (ii) all contentions whose formu- lation does not require access to SUNSI (+25 Answers to petition for intervention; +7 petitioner/requestor reply). 20 ...... Nuclear Regulatory Commission (NRC) staff informs the requester of the staff’s determination whether the request for ac- cess provides a reasonable basis to believe standing can be established and shows need for SUNSI. (NRC staff also informs any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff begins docu- ment processing (preparation of redactions or review of redacted documents). 25 ...... If NRC staff finds no ‘‘need’’ or no likelihood of standing, the deadline for petitioner/requester to file a motion seeking a ruling to reverse the NRC staff’s denial of access; NRC staff files copy of access determination with the presiding offi- cer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds ‘‘need’’ for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff’s grant of access. 30 ...... Deadline for NRC staff reply to motions to reverse NRC staff determination(s). 40 ...... (Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information processing and file motion for Protective Order and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file Non-Dis- closure Agreement for SUNSI. A ...... If access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for ac- cess to sensitive information (including schedule for providing access and submission of contentions) or decision re- versing a final adverse determination by the NRC staff. A + 3 ...... Deadline for filing executed Non-Disclosure Affidavits. Access provided to SUNSI consistent with decision issuing the pro- tective order. A + 28 ...... Deadline for submission of contentions whose development depends upon access to SUNSI. However, if more than 25 days remain between the petitioner’s receipt of (or access to) the information and the deadline for filing all other con- tentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. A + 53 ...... (Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI. A + 60 ...... (Answer receipt +7) Petitioner/Intervenor reply to answers. >A + 60 ...... Decision on contention admission.
[FR Doc. 2011–26486 Filed 10–12–11; 8:45 am] (SFP) license application analyses and http://www.nrc.gov/reading-rm/ BILLING CODE 7590–01–P operations. The guidance is intended to adams.html. From this page, the public reiterate existing guidance, clarify can gain entry into ADAMS, which ambiguity in existing guidance, and provides text and image files of the NUCLEAR REGULATORY identify lessons learned based on recent NRC’s public documents. If you do not COMMISSION submittals. have access to ADAMS or if there are [NRC–2010–0289] FOR FURTHER INFORMATION CONTACT: Mr. problems in accessing the documents Kent Wood, Division of Safety Systems, located in ADAMS, contact the NRC’s Final Division of Safety Systems Office of Nuclear Reactor Regulation, PDR reference staff at 1–800–397–4209, Interim Staff Guidance DSS–ISG–2010– U.S. Nuclear Regulatory Commission, 301–415–4737, or by e-mail to 01: Staff Guidance Regarding the Washington, DC 20555–0001; telephone: [email protected]. Nuclear Criticality Safety Analysis for 301–415–4120; or e-mail: • Federal Rulemaking Web Site: Spent Fuel Pools [email protected]. Public comments and supporting materials related to this final rule can be ADDRESSES: You can access publicly AGENCY: Nuclear Regulatory found at http://www.regulations.gov by available documents related to this Commission. searching on Docket ID NRC–2010– document using the following methods: ACTION: Notice of availability. 0289. Address questions about NRC • NRC’s Public Document Room dockets to Carol Gallagher, telephone: SUMMARY: The U.S. Nuclear Regulatory (PDR): The public may examine and 301–492–3668; e-mail: Commission (NRC) is issuing the final have copied, for a fee, publicly available [email protected]. Division of Safety Systems Interim Staff documents at the NRC’s PDR, O1–F21, Guidance, (DSS–ISG) DSS–ISG–2010– One White Flint North, 11555 Rockville SUPPLEMENTARY INFORMATION: The 01, ‘‘Staff Guidance Regarding the Pike, Rockville, Maryland 20852. agency posts its issued staff guidance in Nuclear Criticality Safety Analysis for • NRC’s Agencywide Documents the agency external Web page (http:// Spent Fuel Pools.’’ This DSS–ISG Access and Management System www.nrc.gov/reading-rm/doc- provides updated guidance to the NRC (ADAMS): Publicly available documents collections/isg/). staff reviewer to address the increased created or received at the NRC are The guidance in DSS–ISG–2010–01 is complexity of recent spent fuel pool available online in the NRC Library at to be used by NRC staff to review: (i)
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Future applications; and (ii) future ACTION: Notice. codified in the Code of Federal licensee applications for license Regulations. These are agency-specific amendments and requests for SUMMARY: This gives notice of OPM exceptions. exemptions from compliance with decisions granting authority to make applicable requirements. appointments under Schedules A, B, Schedule A and C in the excepted service as Dated at Rockville, Maryland this 29th day required by 5 CFR 213.103. No Schedule A authorities to report of September 2011. during July 2011. For the Nuclear Regulatory Commission. FOR FURTHER INFORMATION CONTACT: Roland Edwards, Senior Executive Schedule B Sher Bahadur, Resource Services, Executive Resources Acting Director, Division of Safety Systems, and Employee Development, Employee No Schedule B authorities to report Office of Nuclear Reactor Regulation Services, 202–606–2246. during July 2011. [FR Doc. 2011–26468 Filed 10–12–11; 8:45 am] SUPPLEMENTARY INFORMATION: Appearing Schedule C BILLING CODE 7590–01–P in the listing below are the individual authorities established under Schedules The following Schedule C A, B, and C between July 1, 2011, and appointments were approved during OFFICE OF PERSONNEL July 31, 2011. These notices are July 2011. MANAGEMENT published monthly in the Federal Excepted Service Register at http://www.gpoaccess.gov/fr/ . A consolidated listing of all authorities AGENCY: U.S. Office of Personnel as of June 30 is also published each Management (OPM). year. The following Schedules are not
Authoriza- Effective Agency name Organization name Position title tion number date
DEPARTMENT OF AGRI- Office of the Assistant Secretary for Staff Assistant ...... DA110105 7/13/2011 CULTURE. Congressional Relations. Office of the Deputy Secretary ...... Special Assistant ...... DA110109 7/13/2011 Office of the Under Secretary Farm Special Assistant ...... DA110113 7/14/2011 and Foreign Agricultural Service. Food and Nutrition Service ...... Chief of Staff ...... DA110110 7/14/2011 DEPARTMENT OF COM- Office of Business Liaison ...... Special Assistant ...... DC110107 7/26/2011 MERCE. National Oceanic and Atmospheric Ad- Deputy Director, Office of Legislative DC110104 7/13/2011 ministration. Affairs. National Oceanic and Atmospheric Ad- Special Assistant ...... DC110096 7/6/2011 ministration. COUNCIL ON ENVIRON- Council on Environmental Quality ...... Special Assistant (Energy/Climate EQ110006 7/20/2011 MENTAL QUALITY. Change). DEPARTMENT OF DEFENSE Office of the General Counsel ...... Attorney-Advisor (General) ...... DD110104 7/29/2011 Washington Headquarters Services ..... Staff Assistant ...... DD110112 7/20/2011 DEPARTMENT OF THE ARMY Office of the Assistant Secretary Army Special Assistant (Acquisition, Logistics DW110047 7/1/2011 (Acquisition, Logistics and Tech- and Technology). nology). Office Assistant Secretary Army (Man- Special Assistant (Manpower and Re- DW110048 7/13/2011 power and Reserve Affairs). serve Affairs). DEPARTMENT OF THE NAVY Office of the Under Secretary of the Director, Strategic Communications ..... DN110038 7/22/2011 Navy. DEPARTMENT OF EDU- Office of Postsecondary Education ...... Confidential Assistant ...... DB110099 7/14/2011 CATION. Office of the Secretary ...... Confidential Assistant ...... DB110100 7/22/2011 Office of the Deputy Secretary ...... Director of Policy and Program Imple- DB110093 7/6/2011 mentation. Office of Communications and Out- Confidential Assistant ...... DB110104 7/22/2011 reach. Office of the Secretary ...... Confidential Assistant ...... DB110107 7/29/2011 Office of the Secretary ...... Confidential Assistant ...... DB110096 7/6/2011 Office of the Secretary ...... Confidential Assistant ...... DB110097 7/6/2011 DEPARTMENT OF ENERGY ... Office of Science ...... Special Assistant ...... DE110106 7/20/2011 Office of Management ...... Lead Advance Representative ...... DE110120 7/12/2011 Office of the Deputy Secretary ...... Senior Advisor ...... DE110123 7/19/2011 ENVIRONMENTAL PROTEC- Office of the Administrator ...... Director of Scheduling and Advance .... EP110042 7/13/2011 TION AGENCY. FEDERAL ENERGY REGU- Office of the Chairman ...... Program Analyst ...... DR110007 7/11/2011 LATORY COMMISSION. DEPARTMENT OF HEALTH Office of the Secretary ...... Special Assistant ...... DH110113 7/22/2011 AND HUMAN SERVICES. Office of the Secretary ...... Director of Scheduling and Advance .... DH110120 7/22/2011 Office of Intergovernmental and Exter- Director, Office of External Affairs ...... DH110115 7/22/2011 nal Affairs. Office of Intergovernmental and Exter- Confidential Assistant ...... DH110116 7/22/2011 nal Affairs.
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Authoriza- Effective Agency name Organization name Position title tion number date
Office of Intergovernmental and Exter- Deputy Director, Office of Intergovern- DH110119 7/22/2011 nal Affairs. mental and External Affairs. Office of the Assistant Secretary for Senior Advisor ...... DH110111 7/22/2011 Children and Families. Office of Public Affairs ...... Special Assistant ...... DH110110 7/6/2011 Office of the Assistant Secretary for Confidential Assistant ...... DH110112 7/12/2011 Health. DEPARTMENT OF HOME- U.S. Customs and Border Protection ... Assistant Commissioner for Public Af- DM110222 7/14/2011 LAND SECURITY. fairs. Office of the Assistant Secretary for State and Local Coordinator ...... DM110224 7/14/2011 Intergovernmental Affairs. DEPARTMENT OF HOUSING Office of the Secretary ...... Special Policy Advisor ...... DU110023 7/8/2011 AND URBAN DEVELOP- MENT. Office of Public Affairs ...... Deputy Press Secretary ...... DU110030 7/29/2011 DEPARTMENT OF THE INTE- Secretary’s Immediate Office ...... Press Secretary ...... DI110073 7/15/2011 RIOR. DEPARTMENT OF JUSTICE... Environment and Natural Resources Counsel ...... DJ110105 7/29/2011 Division. Antitrust Division ...... Senior Counsel ...... DJ110093 7/6/2011 Executive Office for United States At- Counsel ...... DJ110098 7/8/2011 torneys. Civil Rights Division ...... Counsel ...... DJ110103 7/19/2011 DEPARTMENT OF LABOR ...... Office of the Deputy Secretary ...... Policy Advisor ...... DL110029 7/13/2011 NATIONAL AERONAUTICS Office of the Administrator ...... Senior Advisor ...... NN110053 7/6/2011 AND SPACE ADMINISTRA- TION. OFFICE OF MANAGEMENT Office of the Director ...... Confidential Assistant ...... BO110027 7/19/2011 AND BUDGET. SECURITIES AND EXCHANGE Division of Corporation Finance ...... Managing Executive ...... SE110006 7/22/2011 COMMISSION. Office of Compliance Inspections and Confidential Assistant ...... SE110007 7/22/2011 Examinations. SMALL BUSINESS ADMINIS- Office of Native American Affairs ...... Assistant Administrator for Native SB110034 7/15/2011 TRATION. American Affairs. Office of Government Contracting and Special Advisor for Government Con- SB110039 7/28/2011 Business Development. tracting and Business Development. Office of Congressional and Legislative Deputy Assistant Administrator for SB110040 7/29/2011 Affairs. Congressional and Legislative Affairs. Office of the Administrator ...... Senior Advisor ...... SB110041 7/29/2011 DEPARTMENT OF STATE ...... Foreign Policy Planning Staff ...... Staff Assistant ...... DS110099 7/11/2011 Office of the Chief of Protocol ...... Protocol Officer (Visits) ...... DS110100 7/11/2011 Office of the Under Secretary for De- Special Adviser for Global Youth DS110097 7/1/2011 mocracy and Global Affairs. Issues. DEPARTMENT OF THE Under Secretary for International Af- Senior Advisor ...... DY110120 7/28/2011 TREASURY. fairs. Assistant Secretary (Legislative Affairs) Special Assistant ...... DY110116 7/22/2011
Authority: 5 U.S.C. 3301 and 3302; E.O. been filed. It identifies preliminary online/login.aspx. Commenters who 10577, 3 CFR 1954–1958 Comp., p. 218. steps and provides a procedural cannot submit their views electronically U.S. Office of Personnel Management. schedule. Publication of this document should contact the person identified in John Berry, will allow the Postal Service, the FOR FURTHER INFORMATION CONTACT Director. petitioners, and others to take section as the source for case-related appropriate action. [FR Doc. 2011–26402 Filed 10–12–11; 8:45 am] information for advice on alternatives to electronic filing. BILLING CODE 6325–39–P DATES: Administrative record due (from Postal Service): October 14, 2011; FOR FURTHER INFORMATION CONTACT: deadline for notices to intervene: Stephen L. Sharfman, General Counsel, POSTAL REGULATORY COMMISSION October 31, 2011, 4:30 p.m., eastern at 202–789–6820 (case-related time. See the Procedural Schedule in information) or [email protected] [Docket No. A2011–101; Order No. 894] the SUPPLEMENTARY INFORMATION section (electronic filing assistance). for other dates of interest. SUPPLEMENTARY INFORMATION: Post Office Closing Notice is ADDRESSES: Submit comments hereby given that, pursuant to 39 U.S.C. AGENCY: Postal Regulatory Commission. electronically by accessing the ‘‘Filing 404(d), on September 29, 2011, the ACTION: Notice. Online’’ link in the banner at the top of Commission received a petition for the Commission’s Web site (http://www. review of the Postal Service’s SUMMARY: This document informs the prc.gov) or by directly accessing the determination to close the Lorraine post public that an appeal of the closing of Commission’s Filing Online system at office in Lorraine, New York. The the Lorraine, New York post office has https://www.prc.gov/prc-pages/filing- petition for review was filed by Susan
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and Dean Paine (Petitioners) and is use the Commission’s Web site is Commission’s Web site unless a waiver postmarked September 20, 2011. The available online or by contacting the is obtained for hardcopy filing. See 39 Commission hereby institutes a Commission’s webmaster via telephone CFR 3001.9(a) and 3001.10(a). proceeding under 39 U.S.C. 404(d)(5) at 202–789–6873 or via electronic mail Further procedures. By statute, the and establishes Docket No. A2011–101 at [email protected]. Commission is required to issue its to consider Petitioners’ appeal. If The appeal and all related documents decision within 120 days from the date Petitioners would like to further explain are also available for public inspection it receives the appeal. See 39 U.S.C. their position with supplemental in the Commission’s docket section. 404(d)(5). A procedural schedule has information or facts, Petitioners may Docket section hours are 8 a.m. to 4:30 been developed to accommodate this either file a Participant Statement on p.m., eastern time, Monday through statutory deadline. In the interest of PRC Form 61 or file a brief with the Friday, except on Federal government expedition, in light of the 120-day Commission no later than November 3, holidays. Docket section personnel may decision schedule, the Commission may 2011. be contacted via electronic mail at prc- request the Postal Service or other Issue apparently raised. Petitioners [email protected] or via telephone at participants to submit information or contend that the Postal Service failed to 202–789–6846. memoranda of law on any appropriate consider the effect of the closing on the Filing of documents. All filings of issue. As required by the Commission community. See 39 U.S.C. documents in this case shall be made rules, if any motions are filed, responses using the Internet (Filing Online) 404(d)(2)(A)(i). are due 7 days after any such motion is After the Postal Service files the pursuant to Commission rules 9(a) and filed. See 39 CFR 3001.21. administrative record and the 10(a) at the Commission’s Web site, Commission reviews it, the Commission http://www.prc.gov, unless a waiver is It is ordered: may find that there are more legal issues obtained. See 39 CFR 3001.9(a) and 1. The Postal Service shall file the than the one set forth above, or that the 3001.10(a). Instructions for obtaining an applicable administrative record Postal Service’s determination disposes account to file documents online may be regarding this appeal no later than of one or more of those issues. The found on the Commission’s Web site or October 14, 2011. deadline for the Postal Service to file the by contacting the Commission’s docket 2. Any responsive pleading by the applicable administrative record with section at [email protected] or via Postal Service to this notice is due no the Commission is October 14, 2011. telephone at 202–789–6846. later than October 14, 2011. See 39 CFR 3001.113. In addition, the The Commission reserves the right to 3. The procedural schedule listed due date for any responsive pleading by redact personal information which may below is hereby adopted. the Postal Service to this notice is infringe on an individual’s privacy 4. Pursuant to 39 U.S.C. 505, Jeremy October 14, 2011. rights from documents filed in this L. Simmons is designated officer of the Availability; Web site posting. The proceeding. Commission (Public Representative) to Commission has posted the appeal and Intervention. Persons, other than represent the interests of the general supporting material on its Web site at Petitioners and respondent, wishing to public. http://www.prc.gov. Additional filings be heard in this matter are directed to 5. The Secretary shall arrange for in this case and participants’ file a notice of intervention. See 39 CFR publication of this notice and order in submissions also will be posted on the 3001.111(b). Notices of intervention in the Federal Register. Commission’s Web site, if provided in this case are to be filed on or before electronic format or amenable to October 31, 2011. A notice of By the Commission. conversion, and not subject to a valid intervention shall be filed using the Ruth Ann Abrams, protective order. Information on how to Internet (Filing Online) at the Acting Secretary.
PROCEDURAL SCHEDULE
September 29, 2011 ...... Filing of Appeal. October 14, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. October 14, 2011 ...... Deadline for the Postal Service to file any responsive pleading. October 31, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). November 3, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). November 23, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). December 8, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 15, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). January 18, 2012 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).
[FR Doc. 2011–26432 Filed 10–12–11; 8:45 am] SECURITIES AND EXCHANGE ACTION: Notice of meeting of SEC BILLING CODE 7710–FW–P COMMISSION Advisory Committee on Small and Emerging Companies. [Release Nos. 33–9266; 34–65512, File No. 265–27] SUMMARY: The Securities and Exchange Commission Advisory Committee on Advisory Committee on Small and Small and Emerging Companies is Emerging Companies providing notice that it will hold a public meeting on Monday, October 31, AGENCY: Securities and Exchange 2011 in the Multi-Purpose Room, L–006, Commission. at the Commission’s headquarters, 100 F Street, NE., Washington, DC 20549. The
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meeting will begin at 9 a.m. (EDT) and Finance, Securities and Exchange ADDRESSES: Comments may be will be open to the public, except for a Commission, 100 F Street, NE., submitted by any of the following period of approximately one hour when Washington, DC 20549–3628. methods: the Committee will meet in an SUPPLEMENTARY INFORMATION: In Electronic Comments administrative work session during accordance with Section 10(a) of the lunch. The public portions of the Federal Advisory Committee Act, 5 • Use the Commission’s Internet meeting will be Web cast on the U.S.C.–App. 1, § 10(a), and the comment form (http://www.sec.gov/ Commission’s Web site at http:// regulations thereunder, Meredith B. rules/other.shtml); or www.sec.gov. Persons needing special Cross, Designated Federal Officer of the • Send an e-mail to rule- accommodations to take part because of Committee, has ordered publication of [email protected]. Please include File a disability should notify the contact this notice. Number 4–639 on the subject line. person listed below. The public is Dated: October 7, 2011. Paper Comments invited to submit written statements to Elizabeth M. Murphy, the Committee. • Send paper comments in triplicate The agenda for the meeting includes Committee Management Officer. to Elizabeth M. Murphy, Secretary, opening remarks, introduction of [FR Doc. 2011–26441 Filed 10–12–11; 8:45 am] Securities and Exchange Commission, Committee members, discussion of the BILLING CODE 8011–01–P 100 F Street, NE., Washington, DC Committee’s agenda and organization, 20549–1090. and discussion of capital formation All submissions should refer to File issues relevant to small and emerging SECURITIES AND EXCHANGE Number 4–639. This file number should companies. COMMISSION be included on the subject line if e-mail DATES: Written statements should be [Release No. 34–65511; File No. 4–639] is used. To help us process and review received on or before October 25, 2011. your comments more efficiently, please Public Roundtable on Execution, ADDRESSES: Written statements may be use only one method. The Commission Clearance and Settlement of Microcap submitted by any of the following will post all comments on the Securities methods: Commission’s Internet Web site (http:// www.sec.gov). Comments are also AGENCY: Securities and Exchange Electronic Statements Commission. available for Web site viewing and • printing in the Commission’s Public Use the Commission’s Internet ACTION: Notice of roundtable discussion; Reference Room, 100 F Street, NE., submission form (http://www.sec.gov/ request for comment. info/smallbus/acsec.shtml); or Washington, DC 20549, on official • Send an e-mail message to rule- SUMMARY: On Monday, October 17, business days between the hours of 10 [email protected]. Please include File 2011, commencing at 1 p.m. and ending a.m. and 3 p.m. All comments received Number 265–27 on the subject line; or at 5 p.m., staff of the Securities and will be posted without change; we do not edit personal identifying Paper Statements Exchange Commission (‘‘SEC’’ or ‘‘Agency’’) will hold a public roundtable information from submissions. You • Send paper statements in triplicate meeting at which invited participants should submit only information that to Elizabeth M. Murphy, Federal will discuss various issues related to the you wish to make available publicly. Advisory Committee Management Execution, Clearance and Settlement of FOR FURTHER INFORMATION CONTACT: The Officer, Securities and Exchange Microcap Securities. Microcap Roundtable Hotline at (202) Commission, 100 F Street, NE., The roundtable discussion will be 551–6607, Division of Enforcement, Washington, DC 20549–9303. held in the multi-purpose room of the Securities and Exchange Commission, All submissions should refer to File No. Securities and Exchange Commission 100 F Street, NE., in Washington, DC 265–27. This file number should be headquarters at 100 F Street, NE., in 20549–7010. included on the subject line if e-mail is Washington, DC on Monday, October Dated: October 7, 2011. used. To help us process and review 17, 2011, commencing at 1 p.m. and By the Commission. your statement more efficiently, please ending at 5 p.m. The public is invited use only one method. The Commission to observe the roundtable discussion. Elizabeth M. Murphy, will post all statements on the Advisory Seating will be available on a first-come, Secretary. Committee’s Web site (http:// first-served basis. The roundtable [FR Doc. 2011–26440 Filed 10–12–11; 8:45 am] www.sec.gov./info/smallbus/ discussion also will be available via BILLING CODE 8011–01–P acsec.shtml). webcast on the Commission’s Web site Statements also will be available for at http://www.sec.gov. Web site viewing and printing in the The roundtable will consist of a series SECURITIES AND EXCHANGE Commission’s Public Reference Room, of three panels. Panelists will consider COMMISSION 100 F Street, NE., Room 1580, a range of microcap securities topics, [Release No. 34–65491; File No. SR–CBOE– Washington, DC 20549, on official such as the current issues facing small 2011–093] business days between the hours of 10 cap issuers in the clearance and a.m. and 3 p.m. All statements received settlement process, potential regulatory Self-Regulatory Organizations; will be posted without change; we do changes impacting the Over-The- Chicago Board Options Exchange, not edit personal identifying Counter markets, and Anti-Money Incorporated; Notice of Filing and information from submissions. You Laundering concerns specific to Immediate Effectiveness of a Proposed should submit only information that microcap issuers. Rule Change To Amend the Customer you wish to make available publicly. DATES: The roundtable discussion will Large Trade Discount FOR FURTHER INFORMATION CONTACT: be held on Monday, October 17, 2011. Johanna V. Losert, Special Counsel, at The Commission will accept comments October 6, 2011. (202) 551–3460, Office of Small regarding issues addressed at the Pursuant to Section 19(b)(1) of the Business Policy, Division of Corporation roundtable until October 31, 2011. Securities Exchange Act of 1934 (the
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‘‘Act’’) 1 and Rule 19b–4 thereunder,2 receive a customer order large enough to order ID and related trade details, notice is hereby given that on October qualify for the Discount (a ‘‘Large within three days of the transaction. 3, 2011, the Chicago Board Options Customer Order’’) and have to break up This is necessary because the Exchange Exchange, Incorporated (the ‘‘Exchange’’ the order into a number of smaller only automatically receives order or ‘‘CBOE’’) filed with the Securities orders to trade throughout the day due information from CBOEdirect (which we and Exchange Commission (the to lack of available volume when the have already explained cannot link the ‘‘Commission’’) the proposed rule order originally comes in. When this separate smaller orders), so the change as described in Items I, II, and occurs, the broker sometimes may not Exchange needs this information to III below, which Items have been first enter the entire order quantity into verify that the smaller orders were part prepared by the Exchange. The one of the Workstations (thereby giving of a Large Customer Order. For the same Commission is publishing this notice to the various smaller orders the same reason, the Exchange is changing solicit comments on the proposed rule order ID), instead breaking up the Large qualification for the Discount to be change from interested persons. Customer Order himself and entering based on the trade date and order ID on the smaller orders individually into one each order (which can be entered into I. Self-Regulatory Organization’s of the Workstations or directly into one of the Workstations), as opposed to Statement of the Terms of Substance of CBOEdirect. Because CBOEdirect trade records (which are only produced the Proposed Rule Change cannot link separate orders, if the broker by CBOEdirect and therefore would not The Exchange proposes to amend the does not first enter the entire order demonstrate that separate smaller orders Fees Schedule regarding the Customer quantity into one of the Workstations may be part of a Large Customer Order). Large Trade Discount. The text of the before sending the smaller individual Further, for Large Customer Orders sent proposed rule change is available on the orders to CBOEdirect, there is no way to the Exchange from a Workstation Exchange’s Web site (http:// for the Exchange to know that all of other than a Floor Broker Workstation or www.cboe.org/legal), at the Exchange’s these smaller orders were part of a Large PULSe Workstation (i.e., a Workstation Office of the Secretary, and at the Customer Order that should qualify for that is not operated through the Commission. the Discount. The broker can notify the Exchange) to qualify for the Discount, II. Self-Regulatory Organization’s Exchange of this occurrence, and must the Exchange must be granted access to Statement of the Purpose of, and send documentation, but sometimes the effectively audit such front end system. Statutory Basis for, the Proposed Rule broker fails to do so. When this This is necessary to ensure that such Change happens, the customer may not end up smaller orders sent to the Exchange are getting the Discount. Even when the indeed part of a Large Customer Order. In its filing with the Commission, the broker does notify the Exchange that all The proposed rule change would clear self-regulatory organization included the small trades were part of a Large up any confusion regarding the entry statements concerning the purpose of Customer Order, if the broker did not and verification of Large Customer and basis for the proposed rule change enter the entire order in one System, the Orders and thereby make it easier for and discussed any comments it received Exchange must manually go back and brokers to ensure that their Large on the proposed rule change. The text review the trade data to verify that all Customer Orders Qualify for the of those statements may be examined at of the small trades were part of one Discount. the places specified in Item IV below. Large Customer Order that would The Exchange has prepared summaries, qualify for the Discount. 2. Statutory Basis set forth in sections A, B, and C below, The Exchange now proposes to The proposed rule change is of the most significant parts of such improve this process to direct brokers consistent with Section 6(b) of the Act 4 statements. on how to ensure that their Large in general, and furthers the objectives of A. Self-Regulatory Organization’s Customer Orders receive for the Section 6(b)(5) 5 of the Act in particular, Statement of the Purpose of, and Discount. Brokers are directed to enter in that it is designed to remove Statutory Basis for, the Proposed Rule the entirety of a Large Customer Order impediments to and perfect the Change that would qualify for the Discount into mechanism of a free and open market one of the Workstations (or CBOEdirect, and a national market system, and, in 1. Purpose if the broker is not going to break up the general, to protect investors and the The Exchange proposes to clarify the Large Customer Order into smaller public interest. By establishing a clear process for the qualification of a orders) so that the entire order quantity process for the entry of Large Customer customer order for the Discount.3 The may be tied to a single order ID. This Orders in order for them to qualify for Discount is intended to cap fees on large will allow the Exchange to clearly the Discount, the proposed rule change customer trades (the quantity of identify the total size of the order. For eliminates confusion, thereby removing contracts necessary for a large customer a Large Customer Order entered into the an impediment to and perfecting the trade to qualify for the Discount varies CBOEdirect system, merely entering the mechanism of a free and open market by product). Large Customer Order, in its entirety, system. The establishment of this The Floor Broker Workstations and into the CBOEdirect system will still be process will also make it easier for PULSe Workstations, as well as any (and always has been) enough for the CBOE to administer the Discount and other front end system used to transmit Large Customer Order to receive the ensure that it is appropriately assessed orders to the Exchange (together, the Discount (though this Large Customer when it is applicable. ‘‘Workstations’’) are order repositories Order will not be able to be broken up into which orders can be entered prior into smaller orders). B. Self-Regulatory Organization’s to being sent to CBOEdirect, which is a For any Large Customer Order entered Statement on Burden on Competition trade engine through which orders are via one of said Workstations that gets CBOE does not believe that the processed. Sometimes a broker will broken up into smaller orders prior to proposed rule change will impose any being sent to CBOEdirect, the broker burden on competition not necessary or 1 15 U.S.C. 78s(b)(1). must still submit a customer large trade 2 17 CFR 240.19b–4. discount request, identifying all 4 15 U.S.C. 78f(b). 3 See Exchange Fees Schedule, Section 18. necessary information, including the 5 15 U.S.C. 78f(b)(5).
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appropriate in furtherance of the amendments, all written statements to Section 19(b)(3)(A)(iii) 3 of the purposes of the Act. with respect to the proposed rule Exchange Act, and Rule 19b–4(f)(3) change that are filed with the thereunder,4 which renders the proposal C. Self-Regulatory Organization’s Commission, and all written effective upon filing with the Statement on Comments on the communications relating to the Commission. The Commission is Proposed Rule Change Received From proposed rule change between the publishing this notice to solicit Members, Participants or Others Commission and any person, other than comments on the proposed rule change No written comments were solicited those that may be withheld from the from interested persons. or received with respect to the proposed public in accordance with the I. Self-Regulatory Organization’s rule change. provisions of 5 U.S.C. 552, will be Statement of the Terms of Substance of available for Web site viewing and III. Date of Effectiveness of the the Proposed Rule Change Proposed Rule Change and Timing for printing in the Commission’s Public Commission Action Reference Room, 100 F Street, NE., The MSRB has filed with the SEC a Washington, DC 20549, on official proposed rule change consisting of an The proposed rule change is business days between the hours of 10 Amended and Restated Articles of designated by the Exchange as a.m. and 3 p.m. Copies of such filing Incorporation. establishing or changing a due, fee, or will also be available for inspection and The text of the proposed rule change other charge, thereby qualifying for copying at the principal office of the is available on the MSRB’s Web site at effectiveness on filing pursuant to Exchange. All comments received will http://www.msrb.org/Rules-and- 6 Section 19(b)(3)(A) of the Act and be posted without change; the Interpretations/SEC–Filings/2011– 7 subparagraph (f)(2) of Rule 19b–4 Commission does not edit personal Filings.aspx, at the MSRB’s principal thereunder. At any time within 60 days identifying information from office, and at the Commission’s Public of the filing of the proposed rule change, submissions. You should submit only Reference Room. the Commission summarily may information that you wish to make temporarily suspend such rule change if available publicly. All submissions II. Self-Regulatory Organization’s it appears to the Commission that such should refer to File No. SR–CBOE– Statement of the Purpose of, and action is necessary or appropriate in the 2011–093 and should be submitted on Statutory Basis for, the Proposed Rule public interest, for the protection of or before November 3, 2011. Change investors, or otherwise in furtherance of In its filing with the Commission, the the purposes of the Act. For the Commission, by the Division of Trading and Markets, pursuant to delegated MSRB included statements concerning IV. Solicitation of Comments authority.8 the purpose of and basis for the proposed rule change and discussed any Interested persons are invited to Elizabeth M. Murphy, comments it received on the proposed submit written data, views and Secretary. rule change. The text of these statements arguments concerning the foregoing, [FR Doc. 2011–26378 Filed 10–12–11; 8:45 am] may be examined at the places specified including whether the proposed rule BILLING CODE 8011–01–P in Item IV below. The Board has change is consistent with the Act. prepared summaries, set forth in Comments may be submitted by any of Sections A, B, and C below, of the most the following methods: SECURITIES AND EXCHANGE COMMISSION significant aspects of such statements. Electronic Comments A. Self-Regulatory Organization’s • [Release No. 34–65495; File No. SR–MSRB– Use the Commission’s Internet 2011–18] Statement of the Purpose of, and comment form (http://www.sec.gov/ Statutory Basis for, the Proposed Rule rules/sro.shtml); or Self-Regulatory Organizations; Change • Send an e-mail to rule- Municipal Securities Rulemaking 1. Purpose [email protected]. Please include File Board; Notice of Filing and Immediate Number SR–CBOE–2011–093 on the Effectiveness of Amended and On September 28, 2011 the subject line. Restated Articles of Incorporation of Commission approved a proposed rule Paper Comments Municipal Securities Rulemaking change consisting of amendments to MSRB Rule A–3, on membership on the • Board Send paper comments in triplicate Board.5 The amendments to A–3 to Elizabeth M. Murphy, Secretary, October 6, 2011. established a permanent Board structure Securities and Exchange Commission, Pursuant to Section 19(b)(1) of the of 21 Board members divided into three 100 F Street, NE., Washington, DC Securities Exchange Act of 1934 (the classes, each class composed of seven 20549–1090. ‘‘Exchange Act’’) 1 and Rule 19b–4 members that will serve three-year All submissions should refer to File thereunder,2 notice is hereby given that terms. In addition, amended Rule A– Number SR–CBOE–2011–093. This file on September 30, 2011, the Municipal 3(h) sets forth a two-year transitional number should be included on the Securities Rulemaking Board (‘‘Board’’ period, commencing October 1, 2012 subject line if e-mail is used. To help the or ‘‘MSRB’’) filed with the Securities and ending on September 30, 2014. Commission process and review your and Exchange Commission (‘‘SEC’’ or During this transitional period, two comments more efficiently, please use ‘‘Commission’’) the proposed rule Board Directors who commenced their only one method. The Commission will change as described in Items I, II, and terms in 2009 and two Board Directors post all comments on the Commission’s III below, which Items have been who commenced their terms in 2010 Internet Web site (http://www.sec.gov/ prepared by the MSRB. The MSRB has shall serve four-year terms, in order to rules/sro/shtml). Copies of the filed the proposed rule change pursuant submission, all subsequent 3 15 U.S.C. 78s(b)(3)(A)(iii). 8 17 CFR 200.30–3(a)(12). 4 17 CFR 240.19b–4(f)(3). 6 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). 5 See Release No. 34–65424, File No. SR–MSRB– 7 17 CFR 240.19b–4(f)(2). 2 17 CFR 240.19b–4. 2011–11 (September 28, 2011).
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transition the Board of Directors to three is concerned solely with the operation without change; the Commission does equally sized classes. and administration of the MSRB. At any not edit personal identifying The proposed rule change would time within 60 days of the filing of the information from submissions. You make changes to the Articles of proposed rule change, the Commission should submit only information that Incorporation as are necessary and summarily may temporarily suspend you wish to make available publicly. All appropriate in order to comply with such rule change if it appears to the submissions should refer to File Section 15B of the Exchange Act, 15 Commission that such action is Number SR–MSRB–2011–18 and should U.S.C. 78o–4, as amended by the Dodd- necessary or appropriate in the public be submitted on or before November 3, Frank Wall Street Reform and Consumer interest, for the protection of investors, 2011. Protection Act, Public Law 111–203, or otherwise in furtherance of the For the Commission, by the Division of § 975, 124 Stat. 1376 (2010) (the ‘‘Dodd- purposes of the Exchange Act.9 Trading and Markets, pursuant to delegated Frank Act’’), and conform the Articles of 10 IV. Solicitation of Comments authority. Incorporation to amended MSRB Rule Elizabeth M. Murphy, Interested persons are invited to A–3. Secretary. submit written data, views, and 2. Statutory Basis arguments concerning the foregoing, [FR Doc. 2011–26381 Filed 10–12–11; 8:45 am] Sections 15B(b)(1) and (2) of the including whether the proposed rule BILLING CODE 8011–01–P Exchange Act,6 as amended by the change is consistent with the Exchange Act. Comments may be submitted by Dodd-Frank Act, require, among other SECURITIES AND EXCHANGE any of the following methods: things, that the rules of the Board COMMISSION establish fair procedures for the Electronic Comments nomination and election of members of [Release No. 34–65493; File No. SR–BYX– • the Board and assure fair representation Use the Commission’s Internet 2011–028] in such nominations and elections of comment form (http://www.sec.gov/ public representatives, broker-dealer rules/sro.shtml); or Self-Regulatory Organizations; BATS • representatives, bank representatives, Send an e-mail to rule- Y–Exchange, Inc.; Notice of Filing and and advisor representatives and the [email protected]. Please include File Immediate Effectiveness of Proposed terms that shall be served by such Number SR–MSRB–2011–18 on the Rule Change Related to Fees for Use members. The MSRB believes that the subject line. of BATS Y–Exchange, Inc. proposed rule change is consistent with Paper Comments October 6, 2011. Section 15B(b)(1) and (2) of the • Send paper comments in triplicate Pursuant to Section 19(b)(1) of the Exchange Act, in that it conforms the to Elizabeth M. Murphy, Secretary, Securities Exchange Act of 1934 (the Articles of Incorporation of the Board to 1 2 Securities and Exchange Commission, ‘‘Act’’), and Rule 19b–4 thereunder, the requirements of the Dodd-Frank Act 100 F Street, NE., Washington, DC notice is hereby given that on and amended MSRB Rule A–3. 20549–1090. September 30, 2011, BATS Y–Exchange, B. Self-Regulatory Organization’s All submissions should refer to File Inc. (the ‘‘Exchange’’ or ‘‘BYX’’) filed Statement on Burden on Competition Number SR–MSRB–2011–18. This file with the Securities and Exchange number should be included on the Commission (‘‘Commission’’) the The MSRB does not believe that the proposed rule change as described in proposed rule change will impose any subject line if e-mail is used. To help the Commission process and review your Items I, II and III below, which Items burden on competition not necessary or have been prepared by the Exchange. appropriate in furtherance of the comments more efficiently, please use only one method. The Commission will The Exchange has designated the purposes of the Exchange Act, since the proposed rule change as one proposed rule change simply amends post all comments on the Commission’s Internet Web site (http://www.sec.gov/ establishing or changing a member due, the Articles of Incorporation of the fee, or other charge imposed by the Board to comply with the requirements rules/sro.shtml). Copies of the submission, all subsequent Exchange under Section 19(b)(3)(A)(ii) of the Dodd-Frank Act and MSRB Rule 3 amendments, all written statements of the Act and Rule 19b–4(f)(2) A–3, and solely concerns the thereunder,4 which renders the administration of the organization. with respect to the proposed rule change that are filed with the proposed rule change effective upon C. Self-Regulatory Organization’s Commission, and all written filing with the Commission. The Statement on Comments on the communications relating to the Commission is publishing this notice to Proposed Rule Change Received From proposed rule change between the solicit comments on the proposed rule Members, Participants, or Others Commission and any person, other than change from interested persons. Written comments were neither those that may be withheld from the I. Self-Regulatory Organization’s solicited nor received on the proposed public in accordance with the Statement of the Terms of Substance of rule change. provisions of 5 U.S.C. 552, will be the Proposed Rule Change available for Web site viewing and The Exchange proposes to amend the III. Date of Effectiveness of the printing in the Commission’s Public fee schedule applicable to Members 5 of Proposed Rule Change and Timing for Reference Room, 100 F Street, NE., the Exchange pursuant to BYX Rules Commission Action Washington, DC 20549, on official 15.1(a) and (c). While changes to the fee The proposed rule change has become business days between the hours of 10 effective pursuant to Section a.m. and 3 p.m. Copies of such filing 10 17 CFR 200.30–3(a)(12). 7 19(b)(3)(A)(iii) of the Exchange Act and also will be available for inspection and 1 15 U.S.C. 78s(b)(1). 8 Rule 19b–4(f)(3) thereunder because it copying at the MSRB’s offices. All 2 17 CFR 240.19b–4. comments received will be posted 3 15 U.S.C. 78s(b)(3)(A)(ii). 6 15 U.S.C. 78o–4(b). 4 17 CFR 240.19b–4(f)(2). 7 15 U.S.C. 78s(b)(3)(A)(iii). 9 See Section 19(b)(3)(C) of the Exchange Act, 15 5 A Member is any registered broker or dealer that 8 17 CFR 240.19b–4(f)(3). U.S.C. 78s(b)(3)(C). has been admitted to membership in the Exchange.
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schedule pursuant to this proposal will the pricing currently charged by the Commission summarily may be effective upon filing, the changes will Exchange for all other Destination temporarily suspend such rule change if become operative on October 3, 2011. Specific Orders. it appears to the Commission that such The text of the proposed rule change action is necessary or appropriate in the 2. Statutory Basis is available at the Exchange’s Web site public interest, for the protection of at http://www.batstrading.com, at the The Exchange believes that the investors, or otherwise in furtherance of principal office of the Exchange, and at proposed rule change is consistent with the purposes of the Act. the Commission’s Public Reference the requirements of the Act and the Room. rules and regulations thereunder that IV. Solicitation of Comments are applicable to a national securities Interested persons are invited to II. Self-Regulatory Organization’s exchange, and, in particular, with the Statement of the Purpose of, and submit written data, views, and requirements of Section 6 of the Act.8 arguments concerning the foregoing, Statutory Basis for, the Proposed Rule Specifically, the Exchange believes that Change including whether the proposed rule the proposed rule change is consistent change is consistent with the Act. In its filing with the Commission, the with Section 6(b)(4) of the Act,9 in that Comments may be submitted by any of Exchange included statements it provides for the equitable allocation the following methods: concerning the purpose of and basis for of reasonable dues, fees and other the proposed rule change and discussed charges among members and other Electronic Comments any comments it received on the persons using any facility or system • Use the Commission’s Internet proposed rule change. The text of these which the Exchange operates or comment form (http://www.sec.gov/ statements may be examined at the controls. The Exchange notes that it rules/sro.shtml); or places specified in Item IV below. The operates in a highly competitive market • Send an e-mail to rule- Exchange has prepared summaries, set in which market participants can [email protected]. Please include File forth in Sections A, B, and C below, of readily direct order flow to competing Number SR–BYX–2011–028 on the the most significant parts of such venues if they deem fee levels at a subject line. statements. particular venue to be excessive. The Paper Comments A. Self-Regulatory Organization’s Exchange believes that the proposed Statement of the Purpose of, and changes to certain of the Exchange’s • Send paper comments in triplicate Statutory Basis for, the Proposed Rule non-standard routing fees and strategies to Elizabeth M. Murphy, Secretary, Change are competitive, fair and reasonable, and Securities and Exchange Commission, non-discriminatory in that they are 100 F Street, NE., Washington, DC 1. Purpose equally applicable to all Members and 20549–1090. The Exchange proposes to modify its are designed to mirror or provide a discount to the cost applicable to the All submissions should refer to File fee schedule applicable to use of the Number SR–BYX–2011–028. This file Exchange effective October 3, 2011, in execution if such routed orders were number should be included on the order to modify pricing related to executed directly by the Member at subject line if e-mail is used. To help the executions that occur on EDGA EDGA Exchange. Commission process and review your EXCHANGE, Inc. (‘‘EDGA’’) through B. Self-Regulatory Organization’s comments more efficiently, please use either a BYX + EDGA Destination Statement on Burden on Competition only one method. The Commission will Specific Order 6 or through the post all comments on the Commission’s Exchange’s TRIM routing strategy.7 The Exchange does not believe that Internet Web site (http://www.sec.gov/ EDGA is implementing certain pricing the proposed rule change imposes any rules/sro.shtml). Copies of the changes effective October 3, 2011, burden on competition. submission, all subsequent including modification of the fee to C. Self-Regulatory Organization’s amendments, all written statements remove liquidity from $0.0006 per share Statement on Comments on the with respect to the proposed rule to $0.0007 per share. To maintain a Proposed Rule Change Received From change that are filed with the direct pass through of the applicable Members, Participants, or Others cost to execute at EDGA, the Exchange Commission, and all written No written comments were solicited communications relating to the proposes to charge $0.0007 per share for or received. an order routed through its TRIM proposed rule change between the routing strategy and executed on EDGA. III. Date of Effectiveness of the Commission and any person, other than Similarly, because EDGA is part of the Proposed Rule Change and Timing for those that may be withheld from the Exchange’s ‘‘One Under’’ pricing Commission Action public in accordance with the program for Destination Specific Orders, provisions of 5 U.S.C. 552, will be Pursuant to Section 19(b)(3)(A)(ii) of available for Web site viewing and the Exchange intends to continue to 10 the Act and Rule 19b–4(f)(2) printing in the Commission’s Public charge $0.0001 per share less than if a thereunder,11 the Exchange has Member executed an order directly on Reference Room on official business designated this proposal as establishing days between the hours of 10 a.m. and EDGA. Accordingly, the Exchange or changing a due, fee, or other charge 3 p.m. Copies of such filing also will be proposes to charge $0.0006 per share for applicable to the Exchange’s Members available for inspection and copying at an order routed as a Destination Specific and non-members, which renders the the principal office of the Exchange. All Order to EDGA and executed on EDGA, proposed rule change effective upon comments received will be posted which is $0.0001 per share less than filing. EDGA charges directly. The Exchange’s At any time within 60 days of the without change; the Commission does ‘‘One Under’’ pricing does not apply to filing of the proposed rule change, the not edit personal identifying securities priced below $1.00. In information from submissions. You addition, the Exchange will maintain 8 15 U.S.C. 78f. should submit only information that 9 15 U.S.C. 78f(b)(4). you wish to make available publicly. All 6 As defined in BYX Rule 11.9(c)(12). 10 15 U.S.C. 78s(b)(3)(A)(ii). submissions should refer to File 7 As defined in BYX Rule 11.13(a)(3)(G). 11 17 CFR 240.19b–4(f)(2). Number SR–BYX–2011–028 and should
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be submitted on or before November 3, statements may be examined at the Exchange market. The Correlix 2011. places specified in Item IV below. The RaceTeam product will include controls For the Commission, by the Division of Exchange has prepared summaries, set such that Users will not be able to Trading and Markets, pursuant to delegated forth in Sections A, B, and C below, of obtain latency information about authority.12 the most significant parts of such options orders through an equities port Elizabeth M. Murphy, statements. connection and vice versa. Secretary. Under the program, the Correlix data A. Self-Regulatory Organization’s collector 4 will see an individualized [FR Doc. 2011–26382 Filed 10–12–11; 8:45 am] Statement of the Purpose of, and unique identifier that will allow BILLING CODE 8011–01–P Statutory Basis for, the Proposed Rule Correlix RaceTeam to determine round Change trip order time,5 from the time the order SECURITIES AND EXCHANGE 1. Purpose reaches the Exchange, through the COMMISSION The purpose of the proposed rule Exchange matching engine, and back change is to establish a revenue sharing out of the Exchange. The RaceTeam [Release No. 34–65497; File No. SR–BATS– product offering does not measure 2011–042] program with Correlix. The Exchange has entered into an agreement with latency outside of the Exchange. The Self-Regulatory Organizations; BATS Correlix to provide to Users 3 of the unique identifier serves as a Exchange, Inc.; Notice of Filing and Exchange real-time analytical tools to technological information barrier so that Immediate Effectiveness of a Revenue measure the latency of orders to and the Correlix data collector will only be Sharing Program With Correlix and a from the Exchange’s system as well as able to view data for Correlix RaceTeam Free Trial Period for New Users of the the latency of market data updates subscribers related to latency. The Correlix Service transmitted from the Exchange systems Correlix data collector will not see to the User. Under the agreement, the subscriber’s individual order detail such October 6, 2011. Exchange will receive 30% of the total as security, price or size. Individual Pursuant to Section 19(b)(1) of the monthly subscription fees received by RaceTeam subscribers’ logins will Securities Exchange Act of 1934 (the Correlix from parties who have restrict access to only their own latency ‘‘Act’’ or the ‘‘Exchange Act’’),1 and contracted directly with Correlix to use data. The Correlix data collector will see Rule 19b–4 thereunder,2 notice is their RaceTeam latency measurement no specific information regarding the hereby given that on September 30, service for the Exchange. The Exchange trading activity of non-subscribers. The 2011, BATS Exchange, Inc. (the will not bill or contract with any Exchange believes that the above ‘‘Exchange’’ or ‘‘BATS’’) filed with the Correlix RaceTeam customer directly. arrangement will provide Users of the Securities and Exchange Commission Fees will apply separately for Users of Exchange with greater transparency into (‘‘Commission’’) the proposed rule the Exchange’s cash equities platform the processing of their trading activity change as described in Items I, II and III and the Exchange’s equity options and allow them to make more efficient below, which Items have been prepared platform. Pricing for the Correlix trading decisions. by the Exchange. The Commission is RaceTeam product for Users of the In addition, the Exchange proposes to publishing this notice to solicit Exchange will be based on the number establish a flexible 60-day free trial so comments on the proposed rule change of ports requested by the User for parties will be eligible for one free 60- from interested persons. monitoring by Correlix; each ‘‘port’’ is a day trial period of Correlix services FIX or binary order entry (‘‘BOE’’) whenever they initially elect to sign-up I. Self-Regulatory Organization’s protocol connection to the Exchange. for the service, now or in the future. The Statement of the Terms of Substance of The fee for equities Users of the Exchange is proposing the flexible trial the Proposed Rule Change Exchange will be an initial $2,500 to ensure that all Correlix subscribers The Exchange is proposing to monthly base fee for the first 25 ports have an equal opportunity to take establish a revenue sharing program requested by the User for latency advantage of an initial free trial period. with Correlix, Inc. (‘‘Correlix’’) and a monitoring, and an additional $1,000 2. Statutory Basis free trial period for new subscribers to per month for each additional 25 ports the Correlix service. (or portion thereof) requested by the The Exchange believes that its The text of the proposed rule change User for latency monitoring. The fee for proposal is consistent with Section 6(b) is available at the Exchange’s Web site options Users of the Exchange will be an of the Act,6 in general, and furthers the at http://www.batstrading.com, at the initial $1,500 monthly fee for the first 25 objectives of Section 6(b)(5) of the Act,7 principal office of the Exchange, and at ports requested by the User for latency in particular, in that it is designed to the Commission’s Public Reference monitoring, and an additional $1,000 prevent fraudulent and manipulative Room. per month for each additional 25 ports acts and practices, to promote just and equitable principles of trade, to foster II. Self-Regulatory Organization’s (or portion thereof). The use of ports as the basis of cooperation and coordination with Statement of the Purpose of, and charging will permit order-related persons engaged in regulating, clearing, Statutory Basis for, the Proposed Rule messages transmitted to the Exchange’s settling, processing information with Change cash equities platform and the respect to, and facilitating transactions In its filing with the Commission, the Exchanges equity options platform to be in securities, to remove impediments to Exchange included statements differentiated and kept separate. For concerning the purpose of and basis for these purposes, the combination of port 4 The Correlix data collector is a Correlix process the proposed rule change and discussed and User ID provides the mechanism for that receives information from the Exchange that is any comments it received on the subsequently taken into Correlix’s systems for Users to receive latency data for their latency monitoring purposes. proposed rule change. The text of these transactions on each particular 5 The product measures latency of orders whether the orders are rejected, executed, or partially 12 17 CFR 200.30–3(a)(12). 3 A ‘‘User’’ is defined in BATS Rule 1.5(cc) as any executed. 1 15 U.S.C. 78s(b)(1). member or sponsored participant of the Exchange 6 15 U.S.C. 78f(b). 2 17 CFR 240.19b–4. who is authorized to obtain access to the System. 7 15 U.S.C. 78f(b)(5).
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and perfect the mechanism of a free and Commission summarily may 2011–042 and should be submitted on open market and a national market temporarily suspend such rule change if or before November 3, 2011. system and, in general, to protect it appears to the Commission that such For the Commission, by the Division of investors and the public interest. The action is necessary or appropriate in the Trading and Markets, pursuant to delegated Exchange believes the proposed rule public interest, for the protection of authority.12 will provide greater transparency into investors, or otherwise in furtherance of Elizabeth M. Murphy, trade and information processing and the purposes of the Act. Secretary. thus allow market participants to make IV. Solicitation of Comments [FR Doc. 2011–26384 Filed 10–12–11; 8:45 am] better-informed and more efficient BILLING CODE 8011–01–P trading decisions. Interested persons are invited to In addition, the Exchange believes submit written data, views and that the proposed rule change is arguments concerning the foregoing, including whether the proposal is SECURITIES AND EXCHANGE consistent with the provisions of COMMISSION Section 6 of the Act,8 in general, and consistent with the Act. Comments may 9 be submitted by any of the following with Section 6(b)(4) of the Act, in [Release No. 34–65500; File No. SR–BATS– particular, in that it provides for the methods: 2011–041] equitable allocation of reasonable dues, Electronic Comments fees and other charges among members Self-Regulatory Organizations; BATS • Use the Commission’s Internet and issuers and other persons using any Exchange, Inc.; Notice of Filing and comment form (http://www.sec.gov/ facility or system that the Exchange Immediate Effectiveness of Proposed rules/sro.shtml); or Rule Change To Adopt a Definition of operates or controls. In particular, the • Send an e-mail to Professional and Require That All Exchange notes that it operates in a [email protected]. Please include Professional Orders Be Appropriately highly competitive market in which File Number SR–BATS–2011–042 on Marked market participants can readily direct the subject line. orders to competing venues and that use of the Correlix RaceTeam product is Paper Comments October 6, 2011. Pursuant to Section 19(b)(1) of the completely voluntary. Further, the • Send paper comments in triplicate Securities Exchange Act of 1934 Exchange will make the RaceTeam to Elizabeth M. Murphy, Secretary, (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 product uniformly available pursuant to Securities and Exchange Commission, notice is hereby given that on a standard non-discriminatory pricing 100 F Street, NE., Washington, DC September 29, 2011, BATS Exchange, schedule offered by Correlix and will 20549–1090. Inc. (the ‘‘Exchange’’ or ‘‘BATS’’) filed offer the free trial period on a uniform All submissions should refer to File and non-discriminatory basis. with the Securities and Exchange Number SR–BATS–2011–042. This file Commission (‘‘Commission’’) the B. Self-Regulatory Organization’s number should be included on the proposed rule change as described in Statement on Burden on Competition subject line if e-mail is used. To help the Items I, II, and III below, which Items Commission process and review your The Exchange does not believe that have been prepared by the Exchange. comments more efficiently, please use The Exchange has designated this the proposed rule change imposes any only one method. The Commission will burden on competition. proposal as a ‘‘non-controversial’’ post all comments on the Commission’s proposed rule change pursuant to C. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ Section 19(b)(3)(A) of the Act 3 and Rule Statement on Comments on the rules/sro.shtml). Copies of the 19b–4(f)(6)(iii) thereunder,4 which Proposed Rule Change Received From submission, all subsequent renders it effective upon filing with the Members, Participants or Others amendments, all written statements Commission. The Commission is with respect to the proposed rule The Exchange has neither solicited publishing this notice to solicit change that are filed with the nor received written comments on the comments on the proposed rule change Commission, and all written proposed rule change. from interested persons. communications relating to the III. Date of Effectiveness of the proposed rule change between the I. Self-Regulatory Organization’s Proposed Rule Change and Timing for Commission and any person, other than Statement of the Terms of Substance of Commission Action those that may be withheld from the the Proposed Rule Change Because the foregoing proposed rule public in accordance with the The Exchange filed a proposal for the change does not: (i) Significantly affect provisions of 5 U.S.C. 552, will be BATS Options Market (‘‘BATS the protection of investors or the public available for Web site viewing and Options’’) to amend Rule 16.1 interest; (ii) impose any significant printing in the Commission’s Public (Definitions) to adopt a definition of burden on competition; and (iii) become Reference Room, 100 F Street, NE., ‘‘Professional’’ on the Exchange and operative for 30 days from the date on Washington, DC 20549, on official require that all Professional orders be which it was filed, or such shorter time business days between the hours of 10 appropriately marked by Exchange as the Commission may designate, it has a.m. and 3 p.m. Copies of such filing members. become effective pursuant to Section also will be available for inspection and The text of the proposed rule change 19(b)(3)(A) of the Act 10 and Rule 19b– copying at the principal office of the is available at the Exchange’s Web site 4(f)(6)(iii) thereunder.11 Exchange. All comments received will at http://www.batstrading.com, at the At any time within 60 days of the be posted without change; the principal office of the Exchange, and at filing of the proposed rule change, the Commission does not edit personal identifying information from 12 17 CFR 200.30–3(a)(12). 8 15 U.S.C. 78f. submissions. You should submit only 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78f(b)(4). information that you wish to make 2 17 CFR 240.19b–4. 10 15 U.S.C. 78s(b)(3)(A). available publicly. All submissions 3 15 U.S.C. 78s(b)(3)(A). 11 17 CFR 240.19b–4(f)(6). should refer to File Number SR–BATS– 4 17 CFR 240.19b–4(f)(6)(iii).
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the Commission’s Public Reference Background BATS Options is being proposed as part Room. A member of BATS Options is known of this rule change. as an Options Member.6 This is a firm The Exchange routes orders to other II. Self-Regulatory Organization’s options exchanges (‘‘Away Exchanges’’) Statement of the Purpose of, and or organization that is registered with the Exchange pursuant to Chapter XVII through its affiliate, BATS Trading, Inc. Statutory Basis for, the Proposed Rule (‘‘BATS Trading’’), and through non- Change of the Exchange’s Rules for purposes of participating in options trading on affiliated third-party broker-dealers. The Exchange’s general routing procedures In its filing with the Commission, the BATS Options as an Options Order are set forth in Rule 21.9 (Order Exchange included statements Entry Firm or Options Market Maker.7 Options traded by Options Members Routing), which states in paragraph (c) concerning the purpose of and basis for that, among other things, once routed by the proposed rule change and discussed (which may include trades on behalf of Public Customers) 8 on BATS Options, a the System, an order becomes subject to any comments it received on the the rules and procedures of the proposed rule change. The text of these wholly electronic exchange, are 12 electronically executable and routable. destination market. statements may be examined at the Many other options exchanges, The System 9 and rules provide for the places specified in Item IV below. The namely the CBOE, ISE, NYSE AMEX, ranking, display, and execution of all Exchange has prepared summaries, set Phlx, NOM and BOX, already have rules orders in price/time priority without forth in Sections A, B, and C below, of that are similar to the Professional regard to the status of the person or the most significant parts of such designation rule proposed by the entity entering an order.10 The statements. Exchange. The above noted exchanges Exchange notes that BATS Options has, make differentiations based on whether A. Self-Regulatory Organization’s similar to BOX and NOM and in an order is marked Professional or contrast to certain other options Statement of the Purpose of, and otherwise. Some Options Members, markets, a ‘‘flat’’ system that does not Statutory Basis for, the Proposed Rule including BATS Trading and the differentiate for execution or processing Change Exchange’s third-party routing broker- purposes among orders on the basis of dealers, are, as noted, also members of 1. Purpose who or what entity enters an order on 11 other options exchanges that have a The purpose of this proposal is to the Exchange. The Exchange notes Professional designation. As members of amend Rule 16.1 (Definitions) to adopt that no change to execution priority on these exchanges, such Options Members a definition of ‘‘Professional’’ on the are subject to their Professional 6 See Rule 16.1(a)(38). Some Options Members are Exchange and require that all also members of other options exchanges such as, designation rules. And, as mentioned Professional orders be appropriately for example, ISE, CBOE, Phlx, or NOM. previously, Exchange Rules indicate marked. 7 An ‘‘Options Order Entry Firm’’ or ‘‘Order Entry that orders routed by these broker- Firm’’ or ‘‘OEF’’ is defined in Rule 16.1(a)(36) as: This filing is similar to previous dealers become subject to the rules and ‘‘those Options Members representing as agent procedures of the Away Exchanges.13 filings of NASDAQ OMX BX, Inc. in Customer Orders on BATS Options and those non- The Exchange believes that disparate connection with the rules of the Boston Market Maker Members conducting proprietary rules with respect to Professional order Options Exchange Group, LLC (‘‘BOX’’), trading.’’ Options Market Maker or Market Maker is defined in Rule 16.1(a)(37) as: ‘‘an Options Member designation, and lack of uniform the Nasdaq Stock Market LLC on behalf registered with the Exchange for the purpose of application of such rules, do not of the NASDAQ Options Market making markets in options contracts traded on the promote the best regulation and may, in (‘‘NOM’’), PHLX NASDAQ OMX, Inc. Exchange and that is vested with the rights and fact, encourage regulatory arbitrage.14 (‘‘Phlx’’), the International Securities responsibilities specified in Chapter XXII of [the Exchange’s] Rules.’’ The Exchange believes that it is Exchange, LLC (‘‘ISE’’), and Chicago 8 ‘‘Public Customer’’ is defined in Rule 16.1(a)(46) therefore prudent and necessary to have Board Options Exchange, Incorporated, as: ‘‘a person that is not a broker or dealer in a Professional designation rule as is securities.’’ (‘‘CBOE’’), which dealt with establishing commonplace in the industry, a new definition of ‘‘Professional’’ as a 9 ‘‘System’’ is defined in Rule 16.1(a)(58) as: ‘‘the automated trading system used by BATS Options particularly where BATS Trading and person or entity that places a certain for the trading of options contracts.’’ the Exchange’s third-party routing high volume of orders in listed options 10 See Securities Exchange Act Release No. 61419 broker-dealers (like other Options per day on average during a calendar (January 26, 2010), 75 FR 5157, 5159 (February 1, Members) are members of several month in his or her own beneficial 2010) (SR–BATS–2009–031). See also Rule 22.8, 5 which discusses the price/time execution algorithm account. for System orders and states, in relevant part, that 12 Rule 21.1(b) states: ‘‘Orders sent by the System the System will execute trading interest at the best to other options exchanges do not retain time 5 See Securities Exchange Act Release Nos. 65036 price in the System before executing trading interest priority with respect to other orders in the System (August 4, 2011), 76 FR 49517 (August 10, 2011) at the next best price, and that the System will and the System shall continue to execute other (SR–BX–2011–049); 63028 (October 1, 2010), 75 FR execute displayed orders before non-displayed orders while routed orders are away at another 62443 (October 8, 2010) (SR–NASDAQ–2010–099); orders at the same price. options exchange. Once routed by the System, an 61802 (March 30, 2010), 75 FR 17193 (April 5, 11 In contrast to BATS Options, hybrid options order becomes subject to the rules and procedures 2010) (SR–Phlx–2010–05); 61198 (December 17, exchanges such as, for example, Phlx and CBOE of the destination options exchange including, but 2009), 74 FR 68880 (December 29, 2009)(SR–CBOE– blend auction and electronic market structures that not limited to, order cancellation. If a routed order 2009–078); and 59287 (January 23, 2009), 74 FR differentiate certain order priority and execution is subsequently returned, in whole or in part, that 5694 (January 30, 2009) (SR–ISE–2006–26). A filing functions based upon, among other things, the order, or its remainder, shall receive a new time by NYSE Amex LLC (‘‘NYSE Amex’’) proposing a origin of the order (e.g., whether the order was a stamp reflecting the time of its return to the similar Professional designation was based on the customer, market maker, broker or dealer, firm, or System.’’ Phlx, ISE, and CBOE proposals. See Securities other type of order); these exchanges also charge 13 Once routed by the System, an order becomes Exchange Act Release No. 61818 (March 31, 2010), different fees based on order origin. BATS Options subject to the rules and procedures of the 75 FR 17457 (April 6, 2010) (SR–NYSEAmex–2010– does, like other exchanges, differentiate fees based destination market including, but not limited to, 18). The cited filings discuss, among other things, on order origin. For example, fees for removing order cancellation. See Rule 21.9. the need for a Professional designation to be liquidity are different for customers than they are 14 The Exchange believes that the risk of applied by members of the respective exchanges for market makers and firms. This filing does not regulatory arbitrage is heightened where not all because the systems of such exchanges differentiate propose any changes in respect of the BATS exchanges have Professional designation rules; and for execution or processing purposes based on order Options fee structure, though the Exchange does there is a lack of uniformity regarding Professional origin. BATS Options, like NOM and BOX, does not intend to file a proposal separately to adopt fees for Rule Exchanges marking orders as Professional differentiate among orders based on their origin. Professional orders. when routing such orders away.
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exchanges that have rules requiring order is placed on BATS Options or corresponds to the daily order volume Professional order designations. some other another of the options recognized by Phlx, NOM, ISE, and exchanges with a Professional other options exchanges that have, as The Proposal designation. Moreover, with the previously discussed, established The Exchange proposes new Rule proposed Professional designation in Professional order designations.22 In 16.1(a)(45) to state that the term place, the Exchange will be able to addition, basing the standard on the ‘‘Professional’’ means any person or accept orders that are marked number of orders that are entered in entity that (i) is not a broker or dealer Professional.19 listed options for a qualified account(s) in securities, and (ii) places more than The designation of an order as a assures that Professional account 390 orders in listed options per day on Professional order would not result in holders cannot inappropriately avoid average during a calendar month for its any different treatment of such order for the purpose of the rule by spreading own beneficial account(s). Moreover, in purposes of BATS Options rules their trading activity over multiple order to properly represent orders concerning away order protection or exchanges, and using an average entered on the Exchange according to routing to Away Exchanges. That is, all number over a calendar month will the new definition, an Options Member non broker or dealer orders, including prevent gaming of the 390 order will be required to appropriately mark those that meet the definition of threshold. all Professional orders.15 To comply Professional orders, would continue to 2. Statutory Basis with this requirement, Options be treated as Public Customers for Members will be required to review purposes of the Exchange’s rules The Exchange believes that its their Public Customers’ activity on at regarding order protection and routing proposal is consistent with Section 6(b) least a quarterly basis to determine to Away Exchanges.20 of the Act 23 in general, and furthers the whether orders that are not for the The Exchange believes that objectives of Section 6(b)(5) of the Act 24 account of a broker-dealer should be identifying Professional accounts based in particular, in that it is designed to represented as Professional orders.16 upon the average number of orders prevent fraudulent and manipulative Upon publication of the notice entered in qualified accounts is an acts and practices, to promote just and regarding this proposal, the Exchange appropriately objective approach that equitable principles of trade, to foster will issue a notice to Options Members will reasonably distinguish such cooperation and coordination with providing them at least ten business persons and entities from retail persons engaged in facilitating days notice of the procedures for the investors or market participants. The transactions in securities, and to remove implementation of the proposal. Exchange proposes the threshold of 390 impediments to and perfect the The Professional definition proposed orders per day on average over a mechanisms of a free and open market by BATS Options is similar to the calendar month, because it believes that and a national market system, by Professional designation that has been this number far exceeds the number of defining Professional and indicating adopted by BOX, NOM, Phlx, ISE, orders that are entered by retail that all Professional orders shall be CBOE, and NYSE Amex.17 As noted, the investors in a single day.21 Moreover, appropriately marked by Options Professional definition will not impact the 390 orders per day threshold Members. The Exchange believes that the Exchange’s price/time order entry proposed by the Exchange directly the proposal is particularly consistent (priority) system.18 Instead, the with Section 6(b)(5) of the Act,25 with Exchange’s proposal will ensure that 19 Currently, BATS Options only accepts orders respect to removal of impediments to, that are marked as customer, firm, or market maker. Options Members mark their While the Exchange does not intend to differentiate and perfection the mechanism of, a free Professional orders properly, that is, among Professional and other orders for priority and open market and a national market similarly in terms of Professional order purposes, it may, in the future, feel that it is system, because the proposed changes identification regardless of whether the appropriate to differentiate its routing or other fees will provide for consistent regulation for in respect of Professional as opposed to other orders; and if so, the Exchange intends to file an Options Members that are members of 15 The Exchange intends to require Members to appropriate fee-related rule filing(s). The Exchange other SROs with analogous rules, as identify Professional orders submitted does not address its fee structure in the present described above. electronically, and will separately notify its filing. Further, the Exchange believes that Members regarding this requirement. 20 See, e.g., Rule 21.9 and Chapter XXVII. disparate rules regarding Professional 16 Members will be required to conduct a 21 390 orders is equal to the total number of order designation, and a lack of uniform quarterly review and make any appropriate changes orders that a person would place in a day if that to the way in which they are representing orders person entered one order every minute from market application of such rules, do not within five business days after the end of each open to market close. Many of the largest retail- promote the best regulation and may, in calendar quarter. While Members will only be oriented electronic brokers offer lower commission fact, encourage regulatory arbitrage. The required to review their accounts on a quarterly rates to customers they define as ‘‘active traders.’’ Exchange believes that it is therefore basis, if during a quarter the Exchange identifies a Publicly available information from the Web sites customer for which orders are being represented as of Charles Schwab, Fidelity, TD Ameritrade and prudent and necessary to have a other than Professional orders but that has averaged OptionsXpress all define ‘‘active trader’’ as Professional designation rule as is more than 390 orders per day during a month, the someone who executes only a few options trades commonplace in the industry, Exchange will notify the Member and the Member per month. The highest required trading activity to particularly where BATS Trading or the will be required to change the manner in which it qualify as an active trader among these four firms is representing the customer’s orders within five was 35 trades per quarter. See note 11 of Securities Exchange’s third-party routing broker- business days. This is similar to the process of other Exchange Act Release No. 57254 (February 1, 2008), dealers (like other Options Members) options exchanges that have adopted a Professional 73 FR 7345, 7347 (SR–ISE–2006–26) (which also are members of several exchanges that designation. See, e.g., Securities Exchange Act notes that a study of one of the largest retail- Release No. 61802 (March 30, 2010), 75 FR 17193 oriented options brokerage firms indicated that on 22 (April 5, 2010) (SR–Phlx–2010–05). a typical trading day, options orders were entered The similarity of the Exchange’s proposed 17 See supra note 5. with respect to 5,922 different customer accounts. Professional order definition to that of other options 18 For example, unlike the Phlx proposal (which, There was only one order entered with respect to exchanges is important from the regulatory among other things, discusses that Professional 3,765 of the 5,922 different customer accounts on perspective, that is from a desire to promote a orders on Phlx will be treated in the same manner this day, and there were only 17 customer accounts national market system that minimizes regulatory as off-floor brokers in terms of certain priority with respect to which more than ten orders were arbitrage. rules), the Exchange’s proposal does not address or entered. The highest number of orders entered with 23 15 U.S.C. 78f(b). impact any priority relationship for Professional as respect to any one account over the course of an 24 15 U.S.C. 78f(b)(5). opposed to other BATS Options orders. entire week was 27). 25 Id.
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have rules requiring Professional order Electronic Comments SECURITIES AND EXCHANGE designations. The designation of • COMMISSION Professional orders would not result in Use the Commission’s Internet any different treatment of such orders comment form (http://www.sec.gov/ rules/sro.shtml); or [Release No. 34–65502; File No. SR–ISE– for purposes of the Exchange’s Rules 2011–63] concerning order protection or routing • Send an e-mail to rule- to Away Exchanges. That is, all non [email protected]. Please include File Self-Regulatory Organizations; broker or dealer orders, including those Number SR–BATS–2011–041 on the International Securities Exchange, that meet the definition of Professional subject line. LLC; Notice of Filing and Immediate orders, would continue to be treated as Effectiveness of Proposed Rule Paper Comments Public Customers for purposes of the Change To Retire a Pilot Program and Exchange’s Rules regarding order • Send paper comments in triplicate To Harmonize ISE’s Rules Regarding protection and routing to Away to Elizabeth M. Murphy, Secretary, Listing Expirations With the Existing Exchanges. As such, the Exchange Securities and Exchange Commission, Rules of Other Exchanges believes the proposed rule change is 100 F Street NE., Washington, DC October 6, 2011. consistent with the Act. 20549–1090. Pursuant to Section 19(b)(1) of the B. Self-Regulatory Organization’s All submissions should refer to File Statement on Burden on Competition Securities Exchange Act of 1934 Number SR–BATS–2011–041. This file (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 The Exchange does not believe that number should be included on the notice is hereby given that, on the proposed rule change imposes any subject line if e-mail is used. To help the September 26, 2011, the International burden on competition. Commission process and review your Securities Exchange, LLC (‘‘ISE’’ or comments more efficiently, please use ‘‘Exchange’’) filed with the Securities C. Self-Regulatory Organization’s only one method. The Commission will Statement on Comments on the and Exchange Commission post all comments on the Commission’s (‘‘Commission’’) the proposed rule Proposed Rule Change Received From Internet Web site (http://www.sec.gov/ Members, Participants or Others change as described in Items I and II rules/sro/shtml). Copies of the below, which Items have been prepared The Exchange has neither solicited submission, all subsequent by the Exchange. The Commission is nor received written comments on the amendments, all written statements publishing this notice to solicit proposed rule change. with respect to the proposed rule comments on the proposed rule change change that are filed with the from interested persons. III. Date of Effectiveness of the Commission, and all written Proposed Rule Change and Timing for communications relating to the I. Self-Regulatory Organization’s Commission Action proposed rule change between the Statement of the Terms of Substance of the Proposed Rule Change Because the foregoing proposed rule Commission and any person, other than change does not: (i) Significantly affect those that may be withheld from the public in accordance with the The Exchange proposes to amend its the protection of investors or the public rules to retire a pilot program and to interest; (ii) impose any significant provisions of 5 U.S.C. 552, will be available for Web site viewing and harmonize ISE’s rules regarding listing burden on competition; and (iii) become expirations with the existing rules of operative for 30 days from the date on printing in the Commission’s Public Reference Room, 100 F Street, NE., other exchanges. The text of the which it was filed, or such shorter time proposed rule change is available on the as the Commission may designate, it has Washington, DC 20549, on official business days between the hours of Exchange’s Web site http:// become effective pursuant to Section www.ise.com, at the principal office of 19(b)(3)(A) of the Act 26 and Rule 19b– 10 a.m. and 3 p.m. Copies of such filing the Exchange, and at the Commission’s 4(f)(6)(iii) thereunder.27 will also be available for inspection and Public Reference Room. At any time within 60 days of the copying at the principal office of the filing of the proposed rule change, the Exchange. All comments received will II. Self-Regulatory Organization’s Commission summarily may be posted without change; the Statement of the Purpose of, and temporarily suspend such rule change if Commission does not edit personal Statutory Basis for, the Proposed Rule it appears to the Commission that such identifying information from Change action is necessary or appropriate in the submissions. You should submit only In its filing with the Commission, the public interest, for the protection of information that you wish to make investors, or otherwise in furtherance of available publicly. All submissions Exchange included statements the purposes of the Act. should refer to File No. SR–BATS– concerning the purpose of, and basis for, 2011–041 and should be submitted on the proposed rule change and discussed IV. Solicitation of Comments or before November 3, 2011. any comments it received on the proposed rule change. The text of these Interested persons are invited to For the Commission, by the Division of statements may be examined at the submit written data, views and Trading and Markets, pursuant to delegated places specified in Item IV below. The arguments concerning the foregoing, authority.28 self-regulatory organization has including whether the proposed rule Elizabeth M. Murphy, prepared summaries, set forth in change is consistent with the Act. Secretary. Sections A, B and C below, of the most Comments may be submitted by any of [FR Doc. 2011–26437 Filed 10–12–11; 8:45 am] the following methods: significant aspects of such statements. BILLING CODE 8011–01–P
26 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). 27 17 CFR 240.19b–4(f)(6). 28 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.
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A. Self-Regulatory Organization’s PHLX.7 PHLX stated in its filing that opening of additional series. Statement of the Purpose of, and this amendment was ‘‘based directly on Specifically, the Exchange proposes to Statutory Basis for, the Proposed Rule the recently approved rules of another amend Rule 504(c) to permit the listing Change options exchange, namely Chapter IV, of additional series when (among other Sections 6 and 8’’ of NOM. Since reasons) the market price of the 1. Purpose PHLX’s rules did not hard code an underlying stock moves more than five The purpose of the proposed rule upper limit on the maximum number of strike prices from the initial exercise change is to retire the Additional expirations that may be listed per class, price or prices.10 Currently, Rule 504(c) Expiration Months Pilot Program (‘‘Pilot ISE believed that PHLX (and NOM) had permits the listing of additional series Program’’) and to amend ISE’s rules the ability of list expirations that ISE when the market price of the underlying regarding listing expirations. This filing would not be able to list under its rules. stock moves substantially from the is based on the existing rules of other As a result, ISE amended its rules by initial exercise price or prices. This options exchanges.3 adding Supplementary Material .10 to proposed rule change again tracks Rule 504 and Supplementary Material ISE Rules Governing Listing of PHLX, NOM and CBOE’s existing rule .04 to Rule 2009 to permit ISE to list Expirations text. additional expiration months on options The Exchange believes the proposed Pursuant to ISE Rule 504(e), ISE classes opened for trading on ISE if such rule change is proper, and indeed typically opens four expiration months expiration months are opened for necessary, in light of the need to have for each class of options open for trading on at least one other national rules that do not put the Exchange at a trading on the Exchange: the first two securities exchange.8 competitive disadvantage. ISE’s being the two nearest months, regardless Retire Additional Expiration Months proposal puts the Exchange in the same of the quarterly cycle on which that Pilot and Adopt Amended Rules position as PHLX, NOM and CBOE and class trades; the third and fourth being provides the Exchange with the same the next two months of the quarterly ISE initially established the Pilot ability to initiate and match identical cycle previously designated by the Program because it did not believe it expirations across exchanges for Exchange for that specific class. had the ability to list more than four products that are multiply-listed and Notwithstanding Rules 504(a) and expirations per class when an options fungible with one another. The 504(c), which presumably provide ISE class is opened for trading on the Exchange believes that the proposed with the flexibility to add additional Exchange. Now that ISE has the ability rule change should encourage expiration months, ISE has historically to match the expiration listings of other competition and be beneficial to traders 9 interpreted Rule 504(e) conservatively exchanges (that may exceed six and market participants by providing and viewed it to allow a maximum expirations and may occur on a regular them with a means to trade on the number of expirations that may be basis) the Exchange believes that the Exchange securities that are initiated by listed. Pilot Program is no longer necessary and the Exchange and listed and traded on In 2010, the Exchange established the is proposing to retire it. To affect this other exchanges. Pilot Program pursuant to which ISE change, the Exchange is proposing to could list up to an additional two delete Supplementary Material .08 to 2. Statutory Basis expiration months, for a total of six Rule 504, which sets forth the terms of The Exchange believes the proposed expiration months for each class of the Pilot Program, and which is rule change is consistent with the option open for trading on the currently scheduled to expire on Securities Exchange Act of 1934 (the Exchange.4 CBOE subsequently October 31, 2011. ‘‘Act’’) 11 and the rules and regulations established a similar pilot program.5 In addition, ISE’s ability to match the thereunder and, in particular, the After ISE and CBOE established their expirations listed by other exchanges is requirements of Section 6(b) of the respective pilot programs, ISE submitted set forth in Supplementary Material .10 Act.12 Specifically, the Exchange a filing in response to a PHLX filing to Rule 504. This provision, however, believes the proposed rule change is regarding the listing of expirations.6 In only provides ISE with the ability the consistent with the Section 6(b)(5) 13 the PHLX filing, PHLX amended its match expirations initiated by other requirements that the rules of an rules so that it could open ‘‘at least one options exchanges. To encourage exchange be designed to promote just expiration month’’ for each class of competition and to place ISE on a level and equitable principles of trade, to standard options open for trading on playing field, the Exchange should have prevent fraudulent and manipulative the same ability as PHLX, NOM and acts, to remove impediments to and to 3 See NASDAQ Options Market (‘‘NOM’’) Chapter CBOE to initiate expirations. Therefore, perfect the mechanism for a free and IV, Section 6 (Series of Options Contracts Option ISE is proposing to harmonize its rules open market and a national market for Trading), NASDAQ OMX PHLX, LLC (‘‘PHLX’’) with the rules of PHLX, NOM and CBOE system, and, in general, to protect Rule 1012 (Series of Options Listed for Trading) and by clarifying that ISE will open at least Chicago Board Options Exchange (‘‘CBOE’’) Rule investors and the public interest. In 5.5 (Series of Option Contracts Open for Trading). one expiration month and one series for particular, the proposed rule change See also Securities Exchange Act Release Nos. each class opened for trading on the will permit the Exchange to 57478 (March 12, 2008), 73 FR 14521 (March 18, Exchange. To affect this change, the accommodate requests made by its 2008) (SR–NASDAQ–2007–004 and NASDAQ– Exchange is proposing to amend the text 2007–080) and 63700 (January 11, 2011) 76 FR 2931 Members and other market participants (January 18, 2011) (SR–PHLX–2011–04). The PHLX of Rule 504(b) to track the rule text of filing was based on NOM’s existing rules. NOM Chapter IV, Section 6, PHLX Rule 10 Rule 504(c) also permits ISE to add additional 4 See Securities Exchange Act Release No. 63104 1012 and CBOE Rule 5.5 and to delete series of options of the same class when the (October 14, 2010), 75 FR 64773 (October 20, 2010) Rule 504(e). Exchange deems it necessary to maintain an orderly (SR–ISE–2010–91). Finally, the Exchange is proposing to market and to meet customer demand. These 5 ‘‘additional series’’ provisions are similar to See Securities Exchange Act Release No. 63185 slightly modify Rule 504 regarding the (October 27, 2010), 75 FR 67419 (November 2, 2010) existing provisions in NOM Chapter IV, Section 6, (SR–ISE–CBOE–2010–97). PHLX Rule 1012 and CBOE Rule 5.5. 6 See Securities Exchange Act Release No. 64343 7 See id. at 24546–24547. 11 15 U.S.C. 78s(b)(1). (April 26, 2011), 76 FR 24546 (May 2, 2011) (SR– 8 See id. at 24547. 12 15 U.S.C. 78f(b). ISE–2011–26). 9 See Supplementary Material .10 to ISE Rule 504. 13 15 U.S.C. 78f(b)(5).
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to list additional expiration months and it appears to the Commission that such For the Commission, by the Division of thus encourages competition without action is necessary or appropriate in the Trading and Markets, pursuant to delegated harming investors or the public interest. public interest, for the protection of authority.17 investors, or otherwise in furtherance of Elizabeth M. Murphy, B. Self-Regulatory Organization’s the purposes of the Act. Secretary. Statement on Burden on Competition IV. Solicitation of Comments [FR Doc. 2011–26439 Filed 10–12–11; 8:45 am] The proposed rule change does not BILLING CODE 8011–01–P impose any burden on competition that Interested persons are invited to is not necessary or appropriate in submit written data, views, and furtherance of the purposes of the Act. arguments concerning the foregoing, SECURITIES AND EXCHANGE including whether the proposed rule COMMISSION C. Self-Regulatory Organization’s change is consistent with the Act. Statement on Comments on the Comments may be submitted by any of [Release No. 34–65503; File No. SR–ISE– Proposed Rule Change Received From the following methods: 2011–60] Members, Participants, or Others Electronic Comments Self-Regulatory Organizations; Notice The Exchange has not solicited, and of Filing of Proposed Rule Change by • Use the Commission’s Internet does not intend to solicit, comments on International Securities Exchange, LLC comment form (http://www.sec.gov/ this proposed rule change. The to Expand the Short Term Options rules/sro.shtml); or Exchange has not received any • Series Program unsolicited written comments from Send an e-mail to rule- members or other interested parties. [email protected]. Please include File October 6, 2011. Number SR–ISE–2011–63 on the subject Pursuant to Section 19(b)(1) of the III. Date of Effectiveness of the line. Securities Exchange Act of 1934 Proposed Rule Change and Timing for Paper Comments (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Commission Action • Send paper comments in triplicate notice is hereby given that on Because the foregoing proposed rule to Elizabeth M. Murphy, Secretary, September 23, 2011, the International change does not significantly affect the Securities and Exchange Commission, Securities Exchange, LLC (‘‘ISE’’ or the protection of investors or the public 100 F Street, NE., Washington, DC ‘‘Exchange’’) filed with the Securities interest, does not impose any significant 20549–1090. and Exchange Commission (‘‘SEC’’ or burden on competition, and, by its ‘‘Commission’’) the proposed rule All submissions should refer to File terms, does not become operative for 30 change as described in Items I and II Number SR–ISE–2011–63. This file days from the date on which it was below, which Items have been prepared number should be included on the filed, or such shorter time as the by the Exchange. The Commission is subject line if e-mail is used. To help the Commission may designate, it has publishing this notice to solicit Commission process and review your become effective pursuant to Section comments on the proposed rule change, comments more efficiently, please use 19(b)(3)(A) of the Act 14 and Rule 19b– from interested persons. only one method. The Commission will 4(f)(6) thereunder.15 post all comments on the Commission’s I. Self-Regulatory Organization’s The Exchange has requested that the Internet Web site (http://www.sec.gov/ Statement of the Terms of Substance of Commission waive the 30-day operative rules/sro.shtml). Copies of the the Proposed Rule Change delay. The Commission believes that submission, all subsequent waiver of the operative delay is The Exchange proposes to amend its amendments, all written statements consistent with the protection of rules to expand the Short Term Option with respect to the proposed rule investors and the public interest Series Program. The text of the proposed change that are filed with the because the proposal should promote rule change is available on the Commission, and all written competition by allowing the Exchange, Exchange’s Web site http://www.ise. communications relating to the without undue delay, to incorporate com, at the principal office of the proposed rule change between the rules that previously have been adopted Exchange, at the Commission’s Public Commission and any person, other than by other exchanges and thereby to list Reference Room, and at the those that may be withheld from the and trade option series that are trading Commission’s Web site at http://www. public in accordance with the on those other options exchanges. sec.gov. provisions of 5 U.S.C. 552, will be Therefore, the Commission designates available for website viewing and II. Self-Regulatory Organization’s the proposal operative upon filing.16 printing in the Commission’s Public Statement of the Purpose of, and At any time within 60 days of the Reference Room, 100 F Street, NE., Statutory Basis for, the Proposed Rule filing of the proposed rule change, the Washington, DC 20549, on official Change Commission summarily may business days between the hours of 10 temporarily suspend such rule change if In its filing with the Commission, the a.m. and 3 p.m. Copies of the filing also Exchange included statements 14 15 U.S.C. 78s(b)(3)(A). will be available for inspection and concerning the purpose of, and basis for, 15 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– copying at the principal office of the the proposed rule change and discussed 4(f)(6)(iii) requires the Exchange to give the Exchange. All comments received will any comments it received on the Commission written notice of the Exchange’s intent be posted without change; the proposed rule change. The text of these to file the proposed rule change, along with a brief Commission does not edit personal description and text of the proposed rule change, statements may be examined at the at least five business days prior to the date of filing identifying information from places specified in Item IV below. The of the proposed rule change, or such shorter time submissions. You should submit only self-regulatory organization has as designated by the Commission. The Exchange information that you wish to make prepared summaries, set forth in has satisfied this requirement. available publicly. All submissions 16 For purposes only of waiving the 30-day operative delay, the Commission has considered the should refer to File Number SR–ISE– 17 17 CFR 200.30–3(a)(12). proposed rule’s impact on efficiency, competition, 2011–63 and should be submitted on or 1 15 U.S.C. 78s(b)(1). and capital formation. See 15 U.S.C. 78c(f). before November 3, 2011. 2 17 CFR 240.19b–4.
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Sections A, B and C below, of the most strike price of each short term option able to respond to market demand, the significant aspects of such statements. has to be fixed with approximately the Exchange is forced to delete or delist same number of strike prices being certain series in order to make room for A. Self-Regulatory Organization’s opened above and below the value of more in demand series.7 The Exchange Statement of the Purpose of, and the underlying security at about the finds this method to be problematic for Statutory Basis for, the Proposed Rule time that the short term options are two reasons. Change initially opened for trading on the First, the Exchange has received 1. Purpose Exchange, and with strike prices being requests to keep series that it intends to within thirty percent (30%) above or delete/delist to make room for more in The purpose of this proposed rule below the closing price of the demand series. While market change is to amend ISE Rules 504 and underlying security from the preceding participants may access other markets 2009 to expand the Short Term Option day. The Exchange does not propose for the deleted/delisted series, the Series Program (‘‘STOS Program’’) 3 so any changes to the STOS Program Exchange would prefer that market that the Exchange may select twenty- limitations other than to increase from participants trade these series at ISE. five option classes to participate in the fifteen to twenty-five the number of Second, this method can lead to STOS Program 4 and list a total of 30 option classes that may be opened competitive disadvantages among Short Term Option Series (‘‘STOS pursuant to the STOS Program and exchanges. If one exchange is actively Options’’) for each option class that increase from 20 to 30 the number of responding to market demand by participates in the Exchange’s STOS Weekly Series that may be opened for deleting/delisting and adding series, if Program.5 each class of option selected to another exchange is the last to list the The STOS Program is codified in participate in the STOS Program. less desirable series with open interest, Supplementary Material .02 to ISE Rule The principal reason for the proposed that exchange is stuck with those series 504 and Supplementary Material .01 to expansion to the number of classes is and unable to list the in demand series ISE Rule 2009. These rules state that customer demand for adding, or not (because to do so would result in more after an option class has been approved removing, short term option classes than 20 series being listed on that for listing and trading on the Exchange, from the STOS Program. In order that exchange). As a result, the maximum the Exchange may open for trading on the Exchange not exceed the fifteen- number of series per class of options any Thursday or Friday that is a option class restriction, from time to that participate in the STOS Program business day series of options on no time the Exchange has had to should be increased to 30 so that more than fifteen option classes that discontinue trading one short term exchanges can list the full panoply of expire on the Friday of the following option class before it could begin series that other exchanges list and business week that is a business day. In trading other option classes within the which the market demands. addition to the fifteen-option class STOS Program. This has negatively To affect this change, the Exchange is limitation, there is also a limitation that impacted investors and traders, proposing to amend its rules to limit the no more than twenty series for each particularly retail public customers. initial number of series that may be expiration date in those classes that may These same market participants also opened for trading to 20 series and to be opened for trading.6 Furthermore, the repeatedly request that the Exchange limit the number of additional series add additional classes to the STOS that may be opened for trading to 10 3 The Exchange adopted the STOS Program on a pilot basis in 2005. See Securities Exchange Act Program which the Exchange is unable series. Release No. 52012 (July 12, 2005), 70 FR 41246 to do as it has already reached its With regard to the impact of this (July 18, 2005) (SR–ISE–2005–17). The STOS maximum allotment of 15 classes. The proposal on system capacity, the Program was approved on a permanent basis in Exchange notes that the STOS Program Exchange has analyzed its capacity and 2010. See Securities Exchange Act Release No. 62444 (July 2, 2010), 75 FR 39595 (July 9, 2010) has been well received by market represents that it and the Options Price (SR–ISE–2010–72). participants, in particular by retail Reporting Authority (‘‘OPRA’’) have the 4 The Exchange previously increased the total investors. The Exchange believes a necessary systems capacity to handle number of option classes that may participate in the modest increase to the number of the potential additional traffic STOS Program from 5 to fifteen (15). See Securities classes that may participate in the STOS associated with trading an expanded Exchange Act Release No. 63878 (February 9, 2011), 76 FR 8796 (February 15, 2011) (SR–ISE–2011–08). Program, such as the one proposed number of classes and series in the 5 The Exchange previously increased the total herein, will permit the Exchange to STOS Program. number of series per STOS Options from 7 to 20 meet increased customer demand and The Exchange believes that the STOS series. See Securities Exchange Act Release No. provide market participants with the Program has provided investors with 62444 (July 2, 2010), 75 FR 39595 (July 9, 2010) (SR–ISE–2010–72). ability to hedge in a greater number of greater trading opportunities and 6 However, if the Exchange opens less than option classes. flexibility and the ability to more twenty (20) short term options for a Short Term The principal reason for the proposed closely tailor their investment and risk Option Expiration Date, additional series may be expansion to the number of series is management strategies and decisions. opened for trading on the Exchange when the market demand for additional series in The Exchange further believes this Exchange deems it necessary to maintain an orderly market, to meet customer demand or when the STOS Options classes in which the proposed rule change will provide market price of the underlying security moves maximum number of series (20) has investors with additional short term substantially from the exercise price or prices of the already been reached. Specifically, the option classes and series for investment, series already opened. Any additional strike prices Exchange has observed increased trading, and risk management purposes. listed by the Exchange shall be within thirty percent (30%) above or below the current price of demand for more series when market Finally, the Commission has the underlying security. The Exchange may also moving events, such as corporate events requested, and the Exchange has agreed open additional strike prices of Short Term Option and large price swings, have occurred for the purposes of this filing, to submit Series that are more than 30% above or below the during the life span of an affected STOS one report to the Commission providing current price of the underlying security provided that demonstrated customer interest exists for such Options class. Currently, in order to be an analysis of the STOS Program (the series, as expressed by institutional, corporate or individual customers or their brokers (market- under this provision). Supplementary Material 7 The Exchange deletes series with no open makers trading for their own account shall not be .02(d) to Rule 504 and Supplementary Material interest and delists series with open interest if those considered when determining customer interest .01(d) to Rule 2009. series are open for trading on another exchange.
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‘‘Report’’). The Report will cover the is not necessary or appropriate in communications relating to the period from July 2, 2010, the date the furtherance of the purposes of the Act. proposed rule change between the Exchange first began to list and trade C. Self-Regulatory Organization’s Commission and any person, other than short term options, through August 31, Statement on Comments on the those that may be withheld from the 2011. The Report will describe the Proposed Rule Change Received From public in accordance with the Exchange’s experience with the STOS Members, Participants, or Others provisions of 5 U.S.C. 552, will be Program in respect of the option classes available for Web site viewing and included by the Exchange in the STOS The Exchange has not solicited, and printing in the Commission’s Public Program. The Report will be submitted does not intend to solicit, comments on Reference Room, 100 F Street, NE., to the Commission on a confidential this proposed rule change. The Washington, DC 20549, on official Exchange has not received any basis under separate cover. business days between the hours of unsolicited written comments from 10 a.m. and 3 p.m. Copies of such filing 2. Statutory Basis members or other interested parties. also will be available for inspection and The Exchange believes that its III. Date of Effectiveness of the copying at the principal office of the proposal is consistent with Section 6(b) Proposed Rule Change and Timing for Exchange. All comments received will 8 of the Securities Exchange Act of 1934 Commission Action be posted without change; the (the ‘‘Act’’) in general, and furthers the Within 45 days of the date of Commission does not edit personal objectives of Section 6(b)(5) of the Act 9 publication of this notice in the Federal identifying information from in particular, in that it is designed to Register or within such longer period (i) submissions. You should submit only promote just and equitable principles of As the Commission may designate up to information that you wish to make trade, to remove impediments to and 90 days of such date if it finds such publicly available. All submissions perfect the mechanism of a free and longer period to be appropriate and should refer to File Number SR–ISE– open market and a national market publishes its reasons for so finding or 2011–60 and should be submitted on or system, and, in general to protect (ii) as to which the Exchange consents, investors and the public interest. The before November 3, 2011. the Commission shall: (a) By order Exchange believes that expanding the For the Commission, by the Division of approve or disapprove such proposed current short term options program will Trading and Markets, pursuant to delegated rule change, or (b) institute proceedings result in a continuing benefit to authority.10 to determine whether the proposed rule investors by giving them more flexibility change should be disapproved. Elizabeth M. Murphy, to closely tailor their investment Secretary. decisions and hedging decisions in IV. Solicitation of Comments [FR Doc. 2011–26438 Filed 10–12–11; 8:45 am] greater number of securities. The Interested persons are invited to BILLING CODE 8011–01–P Exchange believes that expanding the submit written data, views, and current program would provide the arguments concerning the foregoing, investing public and other market including whether the proposed rule SECURITIES AND EXCHANGE participants increased opportunities change is consistent with the Act. COMMISSION because an expanded program would Comments may be submitted by any of provide market participants additional the following methods: opportunities to hedge their investment [Release No. 34–65499; File No. SR–ISE– thus allowing these investors to better Electronic Comments 2011–64] manage their risk exposure. While the • Use the Commission’s Internet Self-Regulatory Organizations; expansion of the STOS Program will comment form (http://www.sec.gov/ generate additional quote traffic, the International Securities Exchange, rules/sro.shtml); or LLC; Notice of Filing and Immediate Exchange does not believe that this • Send an e-mail to rule-comments@ Effectiveness of Proposed Rule increased traffic will become sec.gov. Please include File Number SR– unmanageable since the proposal ISE–2011–60 on the subject line. Change Relating to Professional remains limited to a fixed number of Customer Fees classes. Further, the Exchange does not Paper Comments October 6, 2011. believe that the proposed rule change • Send paper comments in triplicate will result in a material proliferation of to Elizabeth M. Murphy, Secretary, Pursuant to Section 19(b)(1) of the additional series because it is limited to Securities and Exchange Commission, Securities Exchange Act of 1934 (the a fixed number of series per class and 100 F Street, NE., Washington, DC ‘‘Act’’),1 and Rule 19b–4 thereunder,2 the Exchange does not believe that the 20549–1090. notice is hereby given that on additional price points will result in All submissions should refer to File September 26, 2011, the International fractured liquidity. Moreover, the Number SR–ISE–2011–60. This file Securities Exchange, LLC (the Exchange believes the proposed rule number should be included on the ‘‘Exchange’’ or the ‘‘ISE’’) filed with the change would benefit investors by subject line if e-mail is used. To help the Securities and Exchange Commission giving them more flexibility to closely Commission process and review your the proposed rule change, as described tailor their investment decisions in a comments more efficiently, please use in Items I and II below, which items greater number of securities. only one method. The Commission will have been prepared by the self- B. Self-Regulatory Organization’s post all comments on the Commission’s regulatory organization. The Statement on Burden on Competition Internet Web site (http://www.sec.gov/ Commission is publishing this notice to rules/sro.shtml). Copies of the solicit comments on the proposed rule The proposed rule change does not submission, all subsequent change from interested persons. impose any burden on competition that amendments, all written statements with respect to the proposed rule 10 17 CFR 200.30–3(a)(12). 8 15 U.S.C. 78f(b). change that are filed with the 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78f(b)(5). Commission, and all written 2 17 CFR 240.19b–4.
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I. Self-Regulatory Organization’s Orders.5 For purpose of this discussion, allow the Exchange to better compete Statement of the Terms of Substance of ‘‘professional customers’’ are non- for professional customer order flow the Proposed Rule Change broker/dealer participants who enter at and thus enhance competition. The ISE proposes to amend its least 390 orders per day on average Specifically, the Exchange believes that Schedule of Fees relating to certain during a calendar month for their own its proposal to assess a $0.20 per professional customer orders executed beneficial account(s). The Exchange contract fee for professional customers on the Exchange. The text of the notes that the level of trading activity by who take liquidity from the Exchange’s proposed rule change is available on the professional customers more resembles order book in the Non-Select Symbols Exchange’s Web site (http:// that of broker/dealers, i.e., proprietary and for non-complex orders in option traders, than it does of a retail, or www.ise.com), at the principal office of classes that are in the Penny Pilot ‘‘Priority’’ customer. As a result, the Exchange, and at the Commission’s program is equitable and reasonable as professional customers are on parity Public Reference Room. it will standardize fees charged by the with broker/dealers and generally pay Exchange for all professional customers II. Self-Regulatory Organization’s the same transaction fees as broker/ that engage in a similar activity. The Statement of the Purpose of, and dealers. For example, for years broker/ Exchange further believes it is Statutory Basis for, the Proposed Rule dealer orders have been charged an reasonable, equitable and not unfairly Change execution fee of $0.20 per contract in discriminatory to charge professional In its filing with the Commission, the the Non-Select Symbols. And recently, customers the same level of fees that the self-regulatory organization included the Exchange began charging Exchange charges broker/dealers as both statements concerning the purpose of, professional customers who execute groups of market participants essentially and basis for, the proposed rule change orders as a result of posting liquidity to engage in similar trading activity. and discussed any comments it received ISE’s order book in the Non-Select 6 B. Self-Regulatory Organization’s on the proposed rule change. The text Symbols $0.20 per contract. With this proposed fee change, the Statement on Burden on Competition of these statements may be examined at Exchange seeks to standardize the fee the places specified in Item IV below. charged to professional customers for The proposed rule change does not The self-regulatory organization has trading on the Exchange in the Non- impose any burden on competition that prepared summaries, set forth in Select Symbols as all professional is not necessary or appropriate in sections A, B and C below, of the most customers will now pay $0.20 per furtherance of the purposes of the Act. significant aspects of such statements. contract, regardless of whether they are C. Self-Regulatory Organization’s A. Self-Regulatory Organization’s posting liquidity or taking liquidity in Statement on Comments on the Statement of the Purpose of, and the Non-Select Symbols and for non- Proposed Rule Change Received From Statutory Basis for, the Proposed Rule complex orders in option classes that Members, Participants or Others Change are in the Penny Pilot program. The Exchange believes that the proposed The Exchange has not solicited, and 1. Purpose fees for professional customers will does not intend to solicit, comments on ISE proposes to increase the execution allow the Exchange to remain this proposed rule change. The fee for ‘‘professional customers,’’ who competitive with other options Exchange has not received any execute orders as a result of taking exchanges who apply fees to unsolicited written comments from liquidity from ISE’s order book in professional customers. Further, in members or other interested parties. certain option classes, from $0.18 per addition to standardizing theses [sic] III. Date of Effectiveness of the contract to $0.20 per contract. This fees, the Exchange believes the proposed fee change is applicable to Proposed Rule Change and Timing for proposed fee change will make the Commission Action option classes that are not subject to the Exchange’s transaction fees simpler and Exchange’s modified maker/taker more concise to Exchange Members. The foregoing rule change has become pricing structure (‘‘Non-Select The Exchange has designated this effective pursuant to Section 19(b)(3) of Symbols’’). In addition to the Non- proposal to be operative on October 3, the Act 9 and Rule 19b–4(f)(2) 10 Select Symbols, this proposed fee 2011. thereunder. At any time within 60 days change shall also apply to non-complex 2. Statutory Basis of the filing of such proposed rule orders in option classes that are in the change, the Commission summarily may 3 The Exchange believes that its Penny Pilot program. temporarily suspend such rule change if proposal to amend its Schedule of Fees ISE rules distinguish between Priority it appears to the Commission that such 4 is consistent with Section 6(b) of the Customer Orders and Professional action is necessary or appropriate in the Act 7 in general, and furthers the public interest, for the protection of 3 The Exchange recently extended its maker/taker objectives of Section 6(b)(4) of the Act 8 pricing structure to all complex orders in option investors, or otherwise in furtherance of in particular, in that it is an equitable the purposes of the Act. classes that are in the Penny Pilot program. See allocation of reasonable dues, fees and Exchange Act Release No. 65021 (August 3, 2011), 76 FR 48933 (August 9, 2011) (SR–ISE–2011–45). other charges among Exchange IV. Solicitation of Comments The Penny Pilot program, which commenced on members. The Exchange believes that January 26, 2007, permits ISE and all of the other the proposed fee changes will generally Interested persons are invited to options exchanges to quote certain option classes in submit written data, views, and pennies. See Exchange Act Release No. 55161 arguments concerning the foregoing, (January 24, 2007), 72 FR 4754 (February 1, 2007) during a calendar month for its own beneficial (SR–ISE–2006–62). The current pilot is scheduled account(s). including whether the proposed rule to expire on December 31, 2011. See Exchange Act 5 A Professional Order is defined in ISE Rule change is consistent with the Act. Release No. 63437 (December 6, 2010), 75 FR 77032 100(a)(37C) as an order that is for the account of a Comments may be submitted by any of person or entity that is not a Priority Customer. (December 10, 2010) (SR–ISE–2010–116). the following methods: 4 A Priority Customer is defined in ISE Rule 6 See Securities Exchange Act Release No. 61434 100(a)(37A) as a person or entity that is not a broker (January 27, 2010), 75 FR 5826 (February 4, 2010). or dealer in securities, and does not place more 7 15 U.S.C. 78f(b). 9 15 U.S.C. 78s(b)(3)(A). than 390 orders in listed options per day on average 8 15 U.S.C. 78f(b)(4). 10 17 CFR 240.19b–4(f)(2).
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Electronic Comments SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s Statement of the Purpose of, and • COMMISSION Use the Commission’s Internet Statutory Basis for, the Proposed Rule comment form (http://www.sec.gov/ Change rules/sro.shtml); or [Release No. 34–65496; File No. SR–BYX– 2011–027] 1. Purpose • Send an e-mail to rule- [email protected]. Please include File Self-Regulatory Organizations; BATS The purpose of the proposed rule Number SR–ISE–2011–64 on the subject Y–Exchange, Inc.; Notice of Filing and change is to establish a revenue sharing line. Immediate Effectiveness of a Revenue program with Correlix. The Exchange Sharing Program With Correlix and a has entered into an agreement with Paper Comments 3 of the Free Trial Period for New Users of the Correlix to provide to Users Exchange real-time analytical tools to • Correlix Service Send paper comments in triplicate measure the latency of orders to and to Elizabeth M. Murphy, Secretary, October 6, 2011. from the Exchange’s system as well as Securities and Exchange Commission, the latency of market data updates 100 F Street, NE., Washington, DC Pursuant to Section 19(b)(1) of the transmitted from the Exchange systems 20549–1090. Securities Exchange Act of 1934 (the to the User. Under the agreement, the ‘‘Act’’ or the ‘‘Exchange Act’’),1 and Exchange will receive 30% of the total All submissions should refer to File Rule 19b–4 thereunder,2 notice is Number SR–ISE–2011–64. This file monthly subscription fees received by hereby given that on September 30, Correlix from parties who have number should be included on the 2011, BATS Y–Exchange, Inc. (the subject line if e-mail is used. To help the contracted directly with Correlix to use ‘‘Exchange’’ or ‘‘BYX’’) filed with the their RaceTeam latency measurement Commission process and review your Securities and Exchange Commission service for the Exchange. The Exchange comments more efficiently, please use (‘‘Commission’’) the proposed rule will not bill or contract with any only one method. The Commission will change as described in Items I, II and III Correlix RaceTeam customer directly. post all comments on the Commission’s below, which Items have been prepared Pricing for the Correlix RaceTeam Internet Web site (http://www.sec.gov/ by the Exchange. The Commission is product for Users of the Exchange will rules/sro.shtml). Copies of the publishing this notice to solicit be based on the number of ports submission, all subsequent comments on the proposed rule change requested by the User for monitoring by amendments, all written statements from interested persons. Correlix; each ‘‘port’’ is a FIX or binary with respect to the proposed rule order entry (‘‘BOE’’) protocol change that are filed with the I. Self-Regulatory Organization’s connection to the Exchange. The fee for Commission, and all written Statement of the Terms of Substance of Users of the Exchange will be an initial communications relating to the the Proposed Rule Change $1,500 monthly fee for the first 25 ports proposed rule change between the requested by the User for latency Commission and any person, other than The Exchange is proposing to monitoring, and an additional $1,000 those that may be withheld from the establish a revenue sharing program per month for each additional 25 ports public in accordance with the with Correlix, Inc. (‘‘Correlix’’) and a (or portion thereof). provisions of 5 U.S.C. 552, will be free trial period for new subscribers to Under the program, the Correlix data available for Web site viewing and the Correlix service. collector 4 will see an individualized printing in the Commission’s Public The text of the proposed rule change unique identifier that will allow Reference Room, 100 F Street, NE., is available at the Exchange’s Web site Correlix RaceTeam to determine round Washington, DC 20549, on official at http://www.batstrading.com, at the trip order time,5 from the time the order business days between the hours of 10 principal office of the Exchange, and at reaches the Exchange, through the a.m. and 3 p.m. Copies of the filing also the Commission’s Public Reference Exchange matching engine, and back will be available for inspection and Room. out of the Exchange. The RaceTeam copying at the principal office of the product offering does not measure II. Self-Regulatory Organization’s latency outside of the Exchange. The ISE. All comments received will be Statement of the Purpose of, and unique identifier serves as a posted without change; the Commission Statutory Basis for, the Proposed Rule technological information barrier so that does not edit personal identifying Change the Correlix data collector will only be information from submissions. You able to view data for Correlix RaceTeam should submit only information that In its filing with the Commission, the subscribers related to latency. The you wish to make available publicly. All Exchange included statements Correlix data collector will not see submissions should refer to File concerning the purpose of and basis for subscriber’s individual order detail such Number SR–ISE–2011–64 and should be the proposed rule change and discussed as security, price or size. Individual submitted on or before November 3, any comments it received on the RaceTeam subscribers’ logins will 2011. proposed rule change. The text of these restrict access to only their own latency For the Commission, by the Division of statements may be examined at the data. The Correlix data collector will see Trading and Markets, pursuant to delegated places specified in Item IV below. The authority.11 Exchange has prepared summaries, set 3 A ‘‘User’’ is defined in BYX Rule 1.5(cc) as any forth in Sections A, B, and C below, of member or sponsored participant of the Exchange Elizabeth M. Murphy, who is authorized to obtain access to the System. the most significant parts of such Secretary. 4 The Correlix data collector is a Correlix process statements. that receives information from the Exchange that is [FR Doc. 2011–26436 Filed 10–12–11; 8:45 am] subsequently taken into Correlix’s systems for BILLING CODE 8011–01–P latency monitoring purposes. 5 The product measures latency of orders whether 1 15 U.S.C. 78s(b)(1). the orders are rejected, executed, or partially 11 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. executed.
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no specific information regarding the offer the free trial period on a uniform number should be included on the trading activity of non-subscribers. The and non-discriminatory basis. subject line if e-mail is used. To help the Exchange believes that the above Commission process and review your B. Self-Regulatory Organization’s arrangement will provide Users of the comments more efficiently, please use Statement on Burden on Competition Exchange with greater transparency into only one method. The Commission will the processing of their trading activity The Exchange does not believe that post all comments on the Commission’s and allow them to make more efficient the proposed rule change imposes any Internet Web site (http://www.sec.gov/ trading decisions. burden on competition. rules/sro.shtml). Copies of the In addition, the Exchange proposes to C. Self-Regulatory Organization’s submission, all subsequent establish a flexible 60-day free trial so Statement on Comments on the amendments, all written statements parties will be eligible for one free 60- Proposed Rule Change Received From with respect to the proposed rule day trial period of Correlix services Members, Participants or Others change that are filed with the whenever they initially elect to sign-up Commission, and all written for the service, now or in the future. The The Exchange has neither solicited communications relating to the Exchange is proposing the flexible trial nor received written comments on the proposed rule change between the to ensure that all Correlix subscribers proposed rule change. Commission and any person, other than have an equal opportunity to take III. Date of Effectiveness of the those that may be withheld from the advantage of an initial free trial period. Proposed Rule Change and Timing for public in accordance with the provisions of 5 U.S.C. 552, will be 2. Statutory Basis Commission Action available for Web site viewing and Because the foregoing proposed rule The Exchange believes that its printing in the Commission’s Public change does not: (i) Significantly affect proposal is consistent with Section 6(b) Reference Room, 100 F Street, NE., the protection of investors or the public of the Act,6 in general, and furthers the Washington, DC 20549, on official interest; (ii) impose any significant objectives of Section 6(b)(5) of the Act,7 business days between the hours of 10 burden on competition; and (iii) become in particular, in that it is designed to a.m. and 3 p.m. Copies of such filing operative for 30 days from the date on prevent fraudulent and manipulative also will be available for inspection and which it was filed, or such shorter time acts and practices, to promote just and copying at the principal office of the as the Commission may designate, it has equitable principles of trade, to foster Exchange. All comments received will become effective pursuant to Section cooperation and coordination with be posted without change; the 19(b)(3)(A) of the Act 10 and Rule 19b– persons engaged in regulating, clearing, 11 Commission does not edit personal settling, processing information with 4(f)(6)(iii) thereunder. At any time within 60 days of the identifying information from respect to, and facilitating transactions filing of the proposed rule change, the submissions. You should submit only in securities, to remove impediments to Commission summarily may information that you wish to make and perfect the mechanism of a free and temporarily suspend such rule change if available publicly. All submissions open market and a national market it appears to the Commission that such should refer to File Number SR–BYX– system and, in general, to protect action is necessary or appropriate in the 2011–027 and should be submitted on investors and the public interest. The public interest, for the protection of or before November 3, 2011. Exchange believes the proposed rule investors, or otherwise in furtherance of For the Commission, by the Division of will provide greater transparency into the purposes of the Act. Trading and Markets, pursuant to delegated trade and information processing and authority.12 thus allow market participants to make IV. Solicitation of Comments Elizabeth M. Murphy, better-informed and more efficient Interested persons are invited to Secretary. trading decisions. submit written data, views and [FR Doc. 2011–26385 Filed 10–12–11; 8:45 am] In addition, the Exchange believes arguments concerning the foregoing, BILLING CODE 8011–01–P that the proposed rule change is including whether the proposal is consistent with the provisions of consistent with the Act. Comments may Section 6 of the Act,8 in general, and be submitted by any of the following SECURITIES AND EXCHANGE with Section 6(b)(4) of the Act,9 in methods: COMMISSION particular, in that it provides for the equitable allocation of reasonable dues, Electronic Comments [Release No. 34–65494; File No. SR–BATS– fees and other charges among members • Use the Commission’s Internet 2011–044] and issuers and other persons using any comment form (http://www.sec.gov/ Self-Regulatory Organizations; BATS facility or system that the Exchange rules/sro.shtml); or • Exchange, Inc.; Notice of Filing and operates or controls. In particular, the Send an e-mail to rule- Immediate Effectiveness of Proposed Exchange notes that it operates in a [email protected]. Please include File Rule Change Related to Fees for Use highly competitive market in which Number SR–BYX–2011–027 on the of BATS Exchange, Inc. market participants can readily direct subject line. orders to competing venues and that use Paper Comments October 6, 2011. of the Correlix RaceTeam product is Pursuant to Section 19(b)(1) of the • completely voluntary. Further, the Send paper comments in triplicate Securities Exchange Act of 1934 (the Exchange will make the RaceTeam to Elizabeth M. Murphy, Secretary, ‘‘Act’’),1 and Rule 19b–4 thereunder,2 product uniformly available pursuant to Securities and Exchange Commission, notice is hereby given that on a standard non-discriminatory pricing 100 F Street, NE., Washington, DC September 30, 2011, BATS Exchange, schedule offered by Correlix and will 20549–1090. Inc. (the ‘‘Exchange’’ or ‘‘BATS’’) filed All submissions should refer to File with the Securities and Exchange 6 15 U.S.C. 78f(b). Number SR–BYX–2011–027. This file 7 15 U.S.C. 78f(b)(5). 12 17 CFR 200.30–3(a)(12). 8 15 U.S.C. 78f. 10 15 U.S.C. 78s(b)(3)(A). 1 15 U.S.C. 78s(b)(1). 9 15 U.S.C. 78f(b)(4). 11 17 CFR 240.19b–4(f)(6). 2 17 CFR 240.19b–4.
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Commission (‘‘Commission’’) the Exchange’s TRIM routing strategy.6 designated this proposal as establishing proposed rule change as described in EDGA is implementing certain pricing or changing a due, fee, or other charge Items I, II and III below, which Items changes effective October 3, 2011, applicable to the Exchange’s Members have been prepared by the Exchange. including modification of the fee to and non-members, which renders the The Exchange has designated the remove liquidity from $0.0006 per share proposed rule change effective upon proposed rule change as one to $0.0007 per share. To maintain a filing. establishing or changing a member due, direct pass through of the applicable At any time within 60 days of the fee, or other charge imposed by the cost to execute at EDGA, the Exchange filing of the proposed rule change, the Exchange under Section 19(b)(3)(A)(ii) proposes to charge $0.0007 per share for Commission summarily may of the Act 3 and Rule 19b–4(f)(2) an order routed through its TRIM temporarily suspend such rule change if thereunder,4 which renders the routing strategy and executed on EDGA. it appears to the Commission that such action is necessary or appropriate in the proposed rule change effective upon 2. Statutory Basis filing with the Commission. The public interest, for the protection of Commission is publishing this notice to The Exchange believes that the investors, or otherwise in furtherance of solicit comments on the proposed rule proposed rule change is consistent with the purposes of the Act. change from interested persons. the requirements of the Act and the rules and regulations thereunder that IV. Solicitation of Comments I. Self-Regulatory Organization’s are applicable to a national securities Interested persons are invited to Statement of the Terms of Substance of exchange, and, in particular, with the submit written data, views, and the Proposed Rule Change requirements of Section 6 of the Act.7 arguments concerning the foregoing, The Exchange proposes to amend the Specifically, the Exchange believes that including whether the proposed rule fee schedule applicable to Members 5 the proposed rule change is consistent change is consistent with the Act. 8 and non-members of the Exchange with Section 6(b)(4) of the Act, in that Comments may be submitted by any of pursuant to BATS Rules 15.1(a) and (c). it provides for the equitable allocation the following methods: of reasonable dues, fees and other While changes to the fee schedule Electronic Comments pursuant to this proposal will be charges among members and other persons using any facility or system • Use the Commission’s Internet effective upon filing, the changes will comment form (http://www.sec.gov/ become operative on October 3, 2011. which the Exchange operates or controls. The Exchange notes that it rules/sro.shtml); or The text of the proposed rule change • operates in a highly competitive market Send an e-mail to rule- is available at the Exchange’s Web site in which market participants can [email protected]. Please include File at http://www.batstrading.com, at the readily direct order flow to competing Number SR–BATS–2011–044 on the principal office of the Exchange, and at venues if they deem fee levels at a subject line. the Commission’s Public Reference particular venue to be excessive. The Paper Comments Room. Exchange believes that the proposed • Send paper comments in triplicate II. Self-Regulatory Organization’s change to one of the Exchange’s non- to Elizabeth M. Murphy, Secretary, Statement of the Purpose of, and standard routing fees and strategies is Securities and Exchange Commission, Statutory Basis for, the Proposed Rule competitive, fair and reasonable, and 100 F Street, NE., Washington, DC Change non-discriminatory in that it is equally applicable to all Members and is 20549–1090. In its filing with the Commission, the designed to mirror the cost applicable to All submissions should refer to File Exchange included statements the execution if such routed orders were Number SR–BATS–2011–044. This file concerning the purpose of and basis for executed directly by the Member at number should be included on the the proposed rule change and discussed EDGA Exchange. subject line if e-mail is used. To help the any comments it received on the Commission process and review your proposed rule change. The text of these B. Self-Regulatory Organization’s comments more efficiently, please use statements may be examined at the Statement on Burden on Competition only one method. The Commission will places specified in Item IV below. The The Exchange does not believe that post all comments on the Commission’s Exchange has prepared summaries, set the proposed rule change imposes any Internet Web site (http://www.sec.gov/ forth in Sections A, B, and C below, of burden on competition. rules/sro.shtml). Copies of the the most significant parts of such submission, all subsequent statements. C. Self-Regulatory Organization’s Statement on Comments on the amendments, all written statements A. Self-Regulatory Organization’s Proposed Rule Change Received From with respect to the proposed rule Statement of the Purpose of, and Members, Participants, or Others change that are filed with the Commission, and all written Statutory Basis for, the Proposed Rule No written comments were solicited Change communications relating to the or received. proposed rule change between the 1. Purpose III. Date of Effectiveness of the Commission and any person, other than The Exchange proposes to modify the Proposed Rule Change and Timing for those that may be withheld from the ‘‘Equities Pricing’’ section of its fee Commission Action public in accordance with the provisions of 5 U.S.C. 552, will be schedule effective October 3, 2011, in Pursuant to Section 19(b)(3)(A)(ii) of available for Web site viewing and order to modify pricing related to the Act 9 and Rule 19b–4(f)(2) printing in the Commission’s Public executions that occur on EDGA thereunder,10 the Exchange has EXCHANGE, Inc. (‘‘EDGA’’) through the Reference Room on official business days between the hours of 10 a.m. and 6 As defined in BATS Rule 11.13(a)(3)(G). 3 15 U.S.C. 78s(b)(3)(A)(ii). 7 15 U.S.C. 78f. 3 p.m. Copies of such filing also will be 4 17 CFR 240.19b–4(f)(2). 8 15 U.S.C. 78f(b)(4). available for inspection and copying at 5 A Member is any registered broker or dealer that 9 15 U.S.C. 78s(b)(3)(A)(ii). the principal office of the Exchange. All has been admitted to membership in the Exchange. 10 17 CFR 240.19b–4(f)(2). comments received will be posted
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without change; the Commission does II. Self-Regulatory Organization’s general, to protect investors and the not edit personal identifying Statement of the Purpose of, and public interest, by alleviating confusion information from submissions. You Statutory Basis for, the Proposed Rule regarding the impossible imposition of should submit only information that Change the SPX Tier Appointment fee on a you wish to make available publicly. All In its filing with the Commission, the Market-Maker Trading Permit Holder submissions should refer to File self-regulatory organization included who does not hold an SPX tier Number SR–BATS–2011–044 and statements concerning the purpose of appointment but conducts electronic should be submitted on or before and basis for the proposed rule change transactions in SPX Weeklys. November 3, 2011. and discussed any comments it received B. Self-Regulatory Organization’s For the Commission, by the Division of on the proposed rule change. The text Statement on Burden on Competition of those statements may be examined at Trading and Markets, pursuant to delegated CBOE does not believe that the authority.11 the places specified in Item IV below. The Exchange has prepared summaries, proposed rule change will impose any Elizabeth M. Murphy, set forth in sections A, B, and C below, burden on competition not necessary or Secretary. of the most significant parts of such appropriate in furtherance of the [FR Doc. 2011–26383 Filed 10–12–11; 8:45 am] statements. purposes of the Act. BILLING CODE 8011–01–P A. Self-Regulatory Organization’s C. Self-Regulatory Organization’s Statement of the Purpose of, and Statement on Comments on the Statutory Basis for, the Proposed Rule Proposed Rule Change Received From SECURITIES AND EXCHANGE Members, Participants or Others COMMISSION Change 1. Purpose No written comments were solicited or received with respect to the proposed [Release No. 34–65492; File No. SR–CBOE– The Exchange proposes to amend its rule change. 2011–095] Fees Schedule to delete erroneous language from the section discussing III. Date of Effectiveness of the Self-Regulatory Organizations; SPX Tier Appointment fees. The Fees Proposed Rule Change and Timing for Chicago Board Options Exchange, Schedule currently states that the ‘‘SPX Commission Action Incorporated; Notice of Filing and Tier Appointment fee will be assessed The proposed rule change is Immediate Effectiveness of a Proposed to any Market-Maker Trading Permit designated by the Exchange as Rule Change To Amend the Fees Holder that * * * conducts any open establishing or changing a due, fee, or Schedule To Delete Erroneous outcry transactions in SPX or any open other charge, thereby qualifying for Language With Respect to the SPX outcry or electronic transaction in SPX effectiveness on filing pursuant to Tier Appointment Weeklys at any time during a calendar Section 19(b)(3)(A) of the Act 5 and month.’’ This means that a Market- 6 October 6, 2011. subparagraph (f)(2) of Rule 19b–4 Maker Trading Permit Holder that does thereunder. At any time within 60 days Pursuant to Section 19(b)(1) of the not have an SPX tier appointment could of the filing of the proposed rule change, Securities Exchange Act of 1934 (the still be charged the SPX Tier the Commission summarily may ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Appointment fee for conducting any temporarily suspend such rule change if notice is hereby given that on October electronic transaction in SPX Weeklys. it appears to the Commission that such 3, 2011, the Chicago Board Options However, because Market-Makers action is necessary or appropriate in the Exchange, Incorporated (the ‘‘Exchange’’ cannot trade electronically in SPX public interest, for the protection of or ‘‘CBOE’’) filed with the Securities without a tier appointment, it would be investors, or otherwise in furtherance of and Exchange Commission (the impossible to assess this fee to a Market- the purposes of the Act. ‘‘Commission’’) the proposed rule Maker Trading Permit Holder that does IV. Solicitation of Comments change as described in Items I, II, and not have an SPX tier appointment but III below, which Items have been conducts any electronic transaction in Interested persons are invited to prepared by the Exchange. The SPX Weeklys. Indeed, the Exchange has submit written data, views and Commission is publishing this notice to never charged the SPX Tier arguments concerning the foregoing, solicit comments on the proposed rule Appointment fee in this circumstance (it including whether the proposed rule change from interested persons. would be impossible to do so), and the change is consistent with the Act. inclusion of such possibility on the Fees Comments may be submitted by any of I. Self-Regulatory Organization’s Schedule was an error. The Exchange the following methods: Statement of the Terms of Substance of therefore would like to delete such the Proposed Rule Change statement from the Fees Schedule and Electronic Comments alleviate any confusion. • Use the Commission’s Internet The Exchange proposes to amend its comment form (http://www.sec.gov/ 2. Statutory Basis Fees Schedule to delete erroneous rules/sro.shtml); or language from the section discussing The proposed rule change is • Send an e-mail to rule- SPX Tier Appointment fees. The text of consistent with Section 6(b) of the Act 3 [email protected]. Please include File the proposed rule change is available on in general, and furthers the objectives of Number SR–CBOE–2011–095 on the the Exchange’s Web site (http:// Section 6(b)(5) 4 of the Act in particular, subject line. www.cboe.org/legal), at the Exchange’s in that it is designed to remove Office of the Secretary, and at the impediments to and perfect the Paper Comments Commission. mechanism of a free and open market • Send paper comments in triplicate and a national market system, and, in to Elizabeth M. Murphy, Secretary, 11 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). 3 15 U.S.C. 78f(b). 5 15 U.S.C. 78s(b)(3)(A). 2 17 CFR 240.19b–4. 4 15 U.S.C. 78f(b)(5). 6 17 CFR 240.19b–4(f)(2).
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Securities and Exchange Commission, Incident: Remnants of Tropical Storm U.S. Small Business Administration, 100 F Street, NE., Washington, DC Lee. 409 3rd Street, SW., Suite 6050, 20549–1090. Incident Period: 09/07/2011 through Washington, DC 20416. All submissions should refer to File 09/11/2011. SUPPLEMENTARY INFORMATION: The notice Number SR–CBOE–2011–095. This file Effective Date: 10/04/2011. of the President’s major disaster Physical Loan Application Deadline number should be included on the declaration for Private Non-Profit Date: 11/22/2011. subject line if e-mail is used. To help the Economic Injury (EIDL) Loan organizations in the Commonwealth of Commission process and review your Application Deadline Date: 06/25/2012. Puerto Rico, dated 08/27/2011, is hereby comments more efficiently, please use amended to include the following areas ADDRESSES: only one method. The Commission will Submit completed loan as adversely affected by the disaster. applications to: U.S. Small Business post all comments on the Commission’s Primary Municipalities: Patillas. Internet Web site (http://www.sec.gov/ Administration, Processing and All other information in the original rules/sro/shtml). Copies of the Disbursement Center, 14925 Kingsport declaration remains unchanged. submission, all subsequent Road, Fort Worth, TX 76155. amendments, all written statements FOR FURTHER INFORMATION CONTACT: A. (Catalog of Federal Domestic Assistance with respect to the proposed rule Escobar, Office of Disaster Assistance, Numbers 59002 and 59008) U.S. Small Business Administration, change that are filed with the James E. Rivera, Commission, and all written 409 3rd Street, SW., Suite 6050, Washington, DC 20416. Associate Administrator for Disaster communications relating to the Assistance. SUPPLEMENTARY INFORMATION: The notice proposed rule change between the [FR Doc. 2011–26505 Filed 10–12–11; 8:45 am] of the President’s major disaster Commission and any person, other than BILLING CODE 8025–01–P those that may be withheld from the declaration for Private Non-Profit public in accordance with the organizations in the State of New York, provisions of 5 U.S.C. 552, will be dated 09/23/2011, is hereby amended to SMALL BUSINESS ADMINISTRATION available for Web site viewing and include the following areas as adversely affected by the disaster. printing in the Commission’s Public [Disaster Declaration #12848 and #12849] Reference Room, 100 F Street, NE., Primary Counties: Ulster. Washington, DC 20549, on official All other information in the original Texas Disaster Number TX–00382 business days between the hours of 10 declaration remains unchanged. AGENCY: U.S. Small Business a.m. and 3 p.m. Copies of such filing (Catalog of Federal Domestic Assistance will also be available for inspection and Numbers 59002 and 59008) Administration. copying at the principal office of the ACTION: Amendment 2. Exchange. All comments received will James E. Rivera, be posted without change; the Associate Administrator for Disaster SUMMARY: This is an amendment of the Commission does not edit personal Assistance. Presidential declaration of a major identifying information from [FR Doc. 2011–26483 Filed 10–12–11; 8:45 am] disaster for Public Assistance Only for submissions. You should submit only BILLING CODE 8025–01–P the State of Texas (FEMA–4029–DR), information that you wish to make dated 09/21/2011. available publicly. All submissions Incident: Wildfires. should refer to File No. SR–CBOE– SMALL BUSINESS ADMINISTRATION Incident Period: 08/30/2011 and 2011–095 and should be submitted on [Disaster Declaration #12770 and #12771] continuing. or before November 3, 2011. Effective Date: 10/04/2011. Puerto Rico Disaster Number PR– For the Commission, by the Division of Physical Loan Application Deadline Trading and Markets, pursuant to delegated 00015 Date: 11/21/2011. 7 Economic Injury (EIDL) Loan authority. AGENCY: U.S. Small Business Application Deadline Date: 06/21/2012. Elizabeth M. Murphy, Administration. ADDRESSES: Secretary. ACTION: Amendment 4. Submit completed loan [FR Doc. 2011–26380 Filed 10–12–11; 8:45 am] applications to: U.S. Small Business SUMMARY BILLING CODE 8011–01–P : This is an amendment of the Administration, Processing and Presidential declaration of a major Disbursement Center, 14925 Kingsport disaster for Public Assistance Only for Road, Fort Worth, TX 76155. the Commonwealth of Puerto Rico FOR FURTHER INFORMATION CONTACT: A. SMALL BUSINESS ADMINISTRATION (FEMA–4017–DR), dated 08/27/2011. Escobar, Office of Disaster Assistance, Incident: Hurricane Irene. [Disaster Declaration #12858 and #12859] U.S. Small Business Administration, Incident Period: 08/21/2011 through 409 3rd Street, SW., Suite 6050, New York Disaster Number NY–00113 08/24/2011. Washington, DC 20416. Effective Date: 10/04/2011. SUPPLEMENTARY INFORMATION: AGENCY: U.S. Small Business Physical Loan Application Deadline The notice Administration. Date: 10/26/2011. of the President’s major disaster Economic Injury (EIDL) Loan declaration for Private Non-Profit ACTION: Amendment 2. Application Deadline Date: 05/28/2012. organizations in the State of Texas, SUMMARY: This is an amendment of the ADDRESSES: Submit completed loan dated 09/21/2011, is hereby amended to Presidential declaration of a major applications to: U.S. Small Business include the following areas as adversely disaster for Public Assistance Only for Administration, Processing and affected by the disaster. the State of New York (FEMA–4031– Disbursement Center, 14925 Kingsport Primary Counties: Cherokee, Gregg, DR), dated 09/23/2011. Road, Fort Worth, TX 76155. Harrison, Houston, Rusk. FOR FURTHER INFORMATION CONTACT: A. All other information in the original 7 17 CFR 200.30–3(a)(12). Escobar, Office of Disaster Assistance, declaration remains unchanged.
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(Catalog of Federal Domestic Assistance SMALL BUSINESS ADMINISTRATION SUMMARY: This is a Notice of the Numbers 59002 and 59008) Presidential declaration of a major [Disaster Declaration #12824 and #12825] James E. Rivera, disaster for Public Assistance Only for the State of Delaware (FEMA–4037–DR), Associate Administrator for Disaster New York Disaster Number NY–00110 Assistance. dated 09/30/2011. AGENCY: U.S. Small Business Incident: Hurricane Irene. [FR Doc. 2011–26508 Filed 10–12–11; 8:45 am] Administration. Incident Period: 08/25/2011 through BILLING CODE 8025–01–P ACTION: Amendment 4. 08/31/2011. Effective Date: 09/30/2011. SUMMARY: This is an amendment of the Physical Loan Application Deadline SMALL BUSINESS ADMINISTRATION Presidential declaration of a major Date: 11/29/2011. disaster for the State of New York Economic Injury (EIDL) Loan [Disaster Declaration #12807 and #12808] (FEMA–4031–DR), dated 09/13/2011. Application Deadline Date: 07/02/2012. Incident: Remnants of Tropical Storm ADDRESSES: Submit completed loan Pennsylvania Disaster Number PA– Lee. 00043 applications to: U.S. Small Business Incident Period: 09/07/2011 through Administration, Processing and 09/11/2011. Disbursement Center, 14925 Kingsport AGENCY: U.S. Small Business Effective Date: 10/04/2011. Road, Fort Worth, TX 76155. Administration. Physical Loan Application Deadline Date: 11/14/2011. FOR FURTHER INFORMATION CONTACT: A. ACTION: Amendment 2. EIDL Loan Application Deadline Date: Escobar, Office of Disaster Assistance, 06/13/2012. U.S. Small Business Administration, SUMMARY: This is an amendment of the ADDRESSES: Submit completed loan 409 3rd Street, SW., Suite 6050, Presidential declaration of a major Washington, DC 20416. disaster for Public Assistance Only for applications to: U.S. Small Business Administration, Processing and SUPPLEMENTARY INFORMATION: Notice is the Commonwealth of Pennsylvania hereby given that as a result of the (FEMA–4025–DR), dated 09/03/2011. Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155. President’s major disaster declaration on Incident: Hurricane Irene. FOR FURTHER INFORMATION CONTACT: A. 09/30/2011, Private Non-Profit Incident Period: 08/26/2011 through Escobar, Office of Disaster Assistance, organizations that provide essential 08/30/2011. U.S. Small Business Administration, services of governmental nature may file disaster loan applications at the address Effective Date: 10/04/2011. 409 3rd Street, SW., Suite 6050, Washington, DC 20416. listed above or other locally announced Physical Loan Application Deadline locations. SUPPLEMENTARY INFORMATION: The notice Date: 11/02/2011. The following areas have been of the Presidential disaster declaration determined to be adversely affected by Economic Injury (EIDL) Loan for the State of New York, dated 09/13/ the disaster: Application Deadline Date: 06/05/2012. 2011 is hereby amended to include the Primary Counties: Kent, Sussex. ADDRESSES: Submit completed loan following areas as adversely affected by applications to: U.S. Small Business the disaster: The Interest Rates are: Administration, Processing and Primary Counties: (Physical Damage Percent Disbursement Center, 14925 Kingsport and Economic Injury Loans): Oneida, Road, Fort Worth, TX 76155. Ulster, Orange. For Physical Damage: Contiguous Counties: (Economic Injury Non-profit Organizations with FOR FURTHER INFORMATION CONTACT: A. Loans Only): Credit Available Elsewhere ... 3.250 Escobar, Office of Disaster Assistance, New Jersey: Passaic, Sussex. Non-profit Organizations without U.S. Small Business Administration, New York: Columbia, Dutchess, Credit Available Elsewhere ... 3.000 409 3rd Street, SW., Suite 6050, Lewis, Oswego, Putnam, Rockland, For Economic Injury: Washington, DC 20416. Westchester. Non-profit Organizations without Credit Available Elsewhere ... 3.000 SUPPLEMENTARY INFORMATION: The notice Pennsylvania: Pike. of the President’s major disaster All other information in the original The number assigned to this disaster declaration for private non-profit declaration remains unchanged. for physical damage is 128728 and for organizations in the Commonwealth of (Catalog of Federal Domestic Assistance economic injury is 128738. Pennsylvania, dated 09/03/2011, is Numbers 59002 and 59008) hereby amended to include the (Catalog of Federal Domestic Assistance following areas as adversely affected by James E. Rivera, Numbers 59002 and 59008) the disaster. Associate Administrator for Disaster Assistance. James E. Rivera, Associate Administrator for Disaster Primary Counties: Bucks, Lehigh, [FR Doc. 2011–26484 Filed 10–12–11; 8:45 am] Assistance. Monroe, Montgomery. BILLING CODE 8025–01–P [FR Doc. 2011–26498 Filed 10–12–11; 8:45 am] All other information in the original BILLING CODE 8025–01–P declaration remains unchanged. SMALL BUSINESS ADMINISTRATION (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) [Disaster Declaration #12872 and #12873] SMALL BUSINESS ADMINISTRATION James E. Rivera, Delaware Disaster #DE–00010 [Disaster Declaration #12736 and #12737] Associate Administrator for Disaster AGENCY: U.S. Small Business Missouri Disaster Number MO–00052 Assistance. Administration. [FR Doc. 2011–26500 Filed 10–12–11; 8:45 am] AGENCY: U.S. Small Business ACTION: Notice. BILLING CODE 8025–01–P Administration.
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ACTION: Amendment 1. of cultural significance. The objects are be determined, is in the national imported pursuant to loan agreements interest. I have ordered that Public SUMMARY: This is an amendment of the with the foreign owners or custodians. Notice of these Determinations be Presidential declaration of a major I also determine that the exhibition or published in the Federal Register. disaster for the State of Missouri display of the exhibit objects at the Yale FOR FURTHER INFORMATION CONTACT: For (FEMA–4012–DR), dated 08/12/2011. Center for British Art, New Haven, further information, including a list of Incident: Flooding. Connecticut, from on or about October the exhibit objects, contact Paul W. Incident Period: 06/01/2011 through 27, 2011, until on or about February 12, Manning, Attorney-Adviser, Office of 08/01/2011. 2012, and at possible additional the Legal Adviser, U.S. Department of Effective Date: 10/05/2011. exhibitions or venues yet to be State (telephone: 202–632–6469). The Physical Loan Application Deadline determined, is in the national interest. mailing address is U.S. Department of Date: 11/10/2011. I have ordered that Public Notice of State, SA–5, L/PD, Fifth Floor (Suite EIDL Loan Application Deadline Date: these Determinations be published in 5H03), Washington, DC 20522–0505. 05/14/2012. the Federal Register. Dated: October 6, 2011. ADDRESSES: Submit completed loan FOR FURTHER INFORMATION CONTACT: For J. Adam Ereli, applications to: U.S. Small Business further information, including a list of Administration, Processing and Principal Deputy Assistant Secretary, Bureau the exhibit objects, contact Paul W. of Educational and Cultural Affairs, Disbursement Center, 14925 Kingsport Manning, Attorney-Adviser, Office of Road, Fort Worth, TX 76155. Department of State. the Legal Adviser, U.S. Department of [FR Doc. 2011–26399 Filed 10–12–11; 8:45 am] FOR FURTHER INFORMATION CONTACT State (telephone: 202–632–6469). The : A. BILLING CODE 4710–05–P Escobar, Office of Disaster Assistance, mailing address is U.S. Department of U.S. Small Business Administration, State, SA–5, L/PD, Fifth Floor (Suite 409 3rd Street, SW., Suite 6050, 5H03), Washington, DC 20522–0505. DEPARTMENT OF STATE Washington, DC 20416. Dated: October 6, 2011. [Public Notice: 7646] SUPPLEMENTARY INFORMATION: The notice J. Adam Ereli, of the President’s major disaster Principal Deputy Assistant Secretary, Bureau Culturally Significant Objects Imported declaration for the State of Missouri, of Educational and Cultural Affairs, for Exhibition Determinations: ‘‘Diego dated 08/12/2011 is hereby amended to Department of State. Rivera: Murals for the Museum of extend the deadline for filing [FR Doc. 2011–26400 Filed 10–12–11; 8:45 am] Modern Art’’ applications for physical damages as a BILLING CODE 4710–05–P result of this disaster to 11/10/2011. SUMMARY: Notice is hereby given of the All other information in the original following determinations: Pursuant to declaration remains unchanged. DEPARTMENT OF STATE the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. (Catalog of Federal Domestic Assistance [Public Notice 7640] 2459), Executive Order 12047 of March Numbers 59002 and 59008) 27, 1978, the Foreign Affairs Reform and Culturally Significant Objects Imported James E. Rivera, Restructuring Act of 1998 (112 Stat. for Exhibition Determinations: ‘‘Anglo- 2681, et seq.; 22 U.S.C. 6501 note, et Associate Administrator for Disaster Saxon Hoard: Gold From England’s Assistance. seq.), Delegation of Authority No. 234 of Dark Ages’’ [FR Doc. 2011–26487 Filed 10–12–11; 8:45 am] October 1, 1999, Delegation of Authority BILLING CODE 8025–01–P SUMMARY: Notice is hereby given of the No. 236–3 of August 28, 2000 (and, as following determinations: Pursuant to appropriate, Delegation of Authority No. the authority vested in me by the Act of 257 of April 15, 2003), I hereby DEPARTMENT OF STATE October 19, 1965 (79 Stat. 985; 22 U.S.C. determine that the objects to be 2459), Executive Order 12047 of March included in the exhibition ‘‘Diego [Public Notice: 7642] 27, 1978, the Foreign Affairs Reform and Rivera: Murals for The Museum of Modern Art,’’ imported from abroad for Culturally Significant Objects Imported Restructuring Act of 1998 (112 Stat. temporary exhibition within the United for Exhibition Determinations: ‘‘Johan 2681, et seq.; 22 U.S.C. 6501 note, et States, are of cultural significance. The Zoffany RA: Society Observed’’ seq.), Delegation of Authority No. 234 of October 1, 1999, and Delegation of objects are imported pursuant to loan SUMMARY: Notice is hereby given of the Authority No. 236–3 of August 28, 2000 agreements with the foreign owners or following determinations: Pursuant to (and, as appropriate, Delegation of custodians. I also determine that the the authority vested in me by the Act of Authority No. 257 of April 15, 2003), I exhibition or display of the exhibit October 19, 1965 (79 Stat. 985; 22 U.S.C. hereby determine that the objects to be objects at The Museum of Modern Art, 2459), Executive Order 12047 of March included in the exhibition ‘‘Anglo- New York, NY, from on or about 27, 1978, the Foreign Affairs Reform and Saxon Hoard: Gold From England’s Dark November 13, 2011, until on or about Restructuring Act of 1998 (112 Stat. Ages,’’ imported from abroad for May 14, 2012, and at possible additional 2681, et seq.; 22 U.S.C. 6501 note, et temporary exhibition within the United exhibitions or venues yet to be seq.), Delegation of Authority No. 234 of States, are of cultural significance. The determined, is in the national interest. October 1, 1999, and Delegation of objects are imported pursuant to loan I have ordered that Public Notice of Authority No. 236–3 of August 28, 2000 agreements with the foreign owners or these Determinations be published in (and, as appropriate, Delegation of custodians. I also determine that the the Federal Register. Authority No. 257 of April 15, 2003), I exhibition or display of the exhibit FOR FURTHER INFORMATION CONTACT: For hereby determine that the objects to be objects at the National Geographic further information, including a list of included in the exhibition ‘‘Johan Society, Washington, DC, from on or the exhibit objects, contact Julie Zoffany RA: Society Observed,’’ about October 29, 2011, until on or Simpson, Attorney-Adviser, Office of imported from abroad for temporary about March 4, 2012, and at possible the Legal Adviser, U.S. Department of exhibition within the United States, are additional exhibitions or venues yet to State (telephone: 202–632–6467). The
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mailing address is U.S. Department of Dated: October 6, 2011. DEPARTMENT OF TRANSPORTATION State, SA–5, L/PD, Fifth Floor (Suite J. Adam Ereli, 5H03), Washington, DC 20522–0505. Principal Deputy Assistant Secretary, Bureau Federal Aviation Administration Dated: October 7, 2011. of Educational and Cultural Affairs, [Docket No. FAA–2010–0109] Department of State. J. Adam Ereli, [FR Doc. 2011–26519 Filed 10–11–11; 8:45 am] Petition for Waiver of the Terms of the Principal Deputy Assistant Secretary, Bureau of Educational and Cultural Affairs, BILLING CODE 4710–05–P Order Limiting Scheduled Operations Department of State. at LaGuardia Airport [FR Doc. 2011–26518 Filed 10–12–11; 8:45 am] DEPARTMENT OF STATE ACTION: Notice of grant of petition with BILLING CODE 4710–05–P conditions.
[Public Notice: 7643] SUMMARY: The Secretary and the Federal DEPARTMENT OF STATE Aviation Administration (FAA) are In the Matter of the Designation of granting the joint waiver request of Conspiracy of Fire Nuclei, aka [Public Notice: 7645] Delta Air Lines, Inc. (Delta) and US Conspiracy of the Nuclei of Fire, aka Airways, Inc. (US Airways) (together, Culturally Significant Objects Imported Conspiracy of Cells of Fire, aka the Joint Applicants or the carriers) from for Exhibition Determinations: Synomosia of Pyrinon Tis Fotias, aka the prohibition on purchasing operating ‘‘Aphrodite and the Gods of Love’’ Thessaloniki-Athens Fire Nuclei authorizations (slots) at LaGuardia Conspiracy, as a Specially Designated Airport (LGA). The waiver permits the SUMMARY: Notice is hereby given of the Global Terrorist Pursuant to Section carriers to consummate a transaction in following determinations: Pursuant to 1(b) of Executive Order 13224, as which US Airways would transfer to the authority vested in me by the Act of Amended Delta 132 slot pairs (265 slots) at LGA. October 19, 1965 (79 Stat. 985; 22 U.S.C. In exchange, Delta would transfer to US 2459), Executive Order 12047 of March Acting under the authority of and in Airways 42 slot pairs (84 slots) at 27, 1978, the Foreign Affairs Reform and accordance with section 1(b) of Ronald Reagan Washington National Restructuring Act of 1998 (112 Stat. Executive Order 13224 of September 23, Airport (DCA), convey route authority to 2681, et seq.; 22 U.S.C. 6501 note, et 2001, as amended by Executive Order operate certain flights to Sa˜o Paulo, seq.), Delegation of Authority No. 234 of 13268 of July 2, 2002, and Executive Brazil, and make a cash payment to US October 1, 1999, Delegation of Authority Order 13284 of January 23, 2003, I Airways. The waiver is subject to a No. 236–3 of August 28, 2000 (and, as hereby determine that the organization number of conditions, including that the appropriate, Delegation of Authority No. known as Conspiracy of Fire Nuclei, carriers dispose of 16 slots at DCA and 257 of April 15, 2003), I hereby also known as Conspiracy of the Nuclei 32 slots at LGA to eligible new entrant determine that the objects to be of Fire, also known as Conspiracy of and limited incumbent carriers, included in the exhibition ‘‘Aphrodite Cells of Fire, also known as Synomosia pursuant to procedures set out in this and the Gods of Love,’’ imported from of Pyrinon Tis Fotias, also known as Notice, and achieve a mutually abroad for temporary exhibition within Thessaloniki-Athens Fire Nuclei satisfactory agreement regarding gates the United States, are of cultural Conspiracy, has committed, or poses a and associated facilities with any such significance. The objects are imported significant risk of committing, acts of purchaser. terrorism that threaten the security of pursuant to loan agreements with the DATES: The waiver is effective October U.S. nationals or the national security, foreign owners or custodians. I also 13, 2011. determine that the exhibition or display foreign policy, or economy of the United FOR FURTHER INFORMATION CONTACT: of the exhibit objects at the Museum of States. Rebecca MacPherson, Assistant Chief Fine Arts, Boston, MA, from on or about Consistent with the determination in Counsel for Regulations, by telephone at October 26, 2011, until on or about section 10 of Executive Order 13224 that (202) 267–3073 or by electronic mail at February 20, 2012; at the J. Paul Getty ‘‘prior notice to persons determined to [email protected]. Museum at the Getty Villa, Pacific be subject to the Order who might have SUPPLEMENTARY INFORMATION: Palisades, CA, from on or about March a constitutional presence in the United 28, 2012, until on or about July 9, 2012; States would render ineffectual the The Proposed Transaction and the at the San Antonio Museum of Art, San blocking and other measures authorized Waiver Request Antonio, TX, from on or about in the Order because of the ability to The FAA limits the number of September 15, 2012, until on or about transfer funds instantaneously,’’ I February 17, 2013, and at possible scheduled and unscheduled operations determine that no prior notice needs to during peak hours at LGA pursuant to additional exhibitions or venues yet to be provided to any person subject to this be determined, is in the national an Order that was originally published determination who might have a in December 2006 and that has been interest. I have ordered that Public constitutional presence in the United Notice of these Determinations be extended several times since (the States, because to do so would render Order).1 The Order allocates operating published in the Federal Register. ineffectual the measures authorized in FOR FURTHER INFORMATION CONTACT: For the Order. 1 Operating Limitations at New York LaGuardia further information, including a list of This notice shall be published in the Airport, 71 FR 77,854 (Dec. 27, 2006); 72 FR 63,224 Federal Register. (Nov. 8, 2007) (transfer, minimum usage, and the exhibit objects, contact Julie withdrawal amendments); 72 FR 48,428 (Aug. 19, Simpson, Attorney-Adviser, Office of Dated: September 28, 2011. 2008) (reducing the reservations available for the Legal Adviser, U.S. Department of unscheduled operations); 74 FR 845 (Jan. 8, 2009) State (telephone: 202–632–6467). The Hillary Rodham Clinton, (extending the expiration date through Oct. 24, Secretary of State. 2009); 74 FR 2,646 (Jan. 15, 2009) (reducing the mailing address is U.S. Department of peak-hour cap on scheduled operations to 71); 74 [FR Doc. 2011–26367 Filed 10–12–11; 8:45 am] State, SA–5, L/PD, Fifth Floor (Suite FR 51,653 (Oct. 7, 2009) (extending the expiration 5H03), Washington, DC 20522–0505. BILLING CODE 4710–10–P date through Oct. 29, 2011); 76 FR 18,616 (Apr. 4,
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authorizations (commonly known as that were likely to be attained and the days after the closing date of the sale of slots) to carriers and establishes rules possible adverse consequences that the divested slots and from operating for the use and operation of slots. The could result from the proposed more than 50 percent of the total Order allows temporary leases and transaction, and tentatively concluded number of slots included in the Joint trades of slots between carriers, that the waiver should be granted with Applicants’ Agreement between the 91st provided that they do not extend certain conditions. and the 210th day following the close beyond the duration of the Order.2 Most To mitigate the competitive harms date of the sale of the divested slots, importantly for purposes of this waiver that may accrue from the transaction, after which time the transferee would be request, the Order does not permit the we proposed conditions that included free to operate the remainder of the purchase and sale of slots at LGA. The the divestiture of 32 slots at LGA (16 slots. arrival and 16 departure) and 16 slots at only way for a carrier to sell or purchase To enable purchasing carriers to a slot at LGA is through a waiver of the DCA, by a blind, cash-only sale through an FAA-managed Web site, to limited achieve a critical mass of slots, we also Order. proposed to package the slots into A different legal regime governing incumbent and new entrant carriers bundles of 8 slot pairs. (Thus, there slots exists at DCA. The High Density having fewer than five percent of the would be two slot bundles at LaGuardia Rule (HDR) 3 limits scheduled and total slot holdings at DCA and LGA of 8 pairs each, and one slot bundle at unscheduled operations there. The HDR respectively, and that do not code share Reagan National consisting of 8 pairs.) permits carriers to sell or purchase slots to or from DCA or LGA with any carrier at DCA freely with only FAA that has five percent or more slot An eligible carrier may, under our confirmation of the transaction. holdings. We also proposed that carriers proposal, purchase only one slot bundle On May 23, 2011, the Joint Applicants eligible to purchase the divested slots at each airport (while indicating submitted a joint request for a limited not be subsidiaries, either partially or preference ranking for each slot bundle waiver from the prohibition on wholly owned, of a company whose as part of its offer). However, should one purchasing slots at LGA. The carriers combined slot holdings are equal to or carrier make the highest bid on both requested the waiver to allow them to greater than five percent at DCA or LGA bundles at LaGuardia, we proposed that consummate a transaction in which US respectively.6 the seller would have the option of Airways would transfer to Delta 132 slot We proposed that the carriers notify accepting both high bids, thus pairs (265 slots) at LGA, and Delta the FAA as to whether they intend to overriding the one bundle per carrier would transfer to US Airways 42 pairs proceed with the transaction and, if they proposal. (84 slots) at DCA, together with route do, that they provide certain We further proposed that the slots authority to operate certain flights to information regarding the slots to be purchased in the auction would be Sa˜o Paulo, Brazil, and make a cash divested. We also proposed that the subject to the same minimum usage payment to US Airways. FAA would post a notice of the requirements as provided in the LGA available slot bundles on a Web site and FAA’s Tentative Determination Order and HDR, that is, 80% over a two- provide for eligible carriers to register to month reporting period. The minimum On July 21, 2011 the FAA issued a purchase the slot bundles. The FAA usage would be waived, however, for six would assign each registered bidder a Notice of petition for waiver and months following purchase to allow the random number, so no information solicited comments on the proposed purchaser to begin service in new identifying the bidder would be grant of the petition with conditions, markets or add service to existing available to the seller or public. A through August 29 in this Docket. 76 FR markets. Additionally, we proposed that bidder would be allowed to indicate its 45,313 (July 28, 2011). In that notice, we the purchaser may lease the acquired tentatively approved the proposed preference ranking for each slot bundle as part of its offer. The FAA would slots to the seller until the purchaser is transaction subject to certain conditions ready to initiate service to maximize (July 2011 Notice).4 At that time, we specify a bid closing date and time. All offers to purchase slot bundles would be operations at the airports. However, we tentatively found that the proposed would require that the slots not be sold transaction offered important benefits to sent to the FAA electronically; offers would have to include the prospective or leased to other carriers during the 12 the public. At the same time, we were months following purchase because the concerned that the proposed transaction purchaser’s assigned number, the monetary amount, and the preference purchaser must hold and use the could have an adverse impact on acquired slots. competition because of the reduction in ranking for that slot bundle. The FAA competition between the two carriers would review the offers for each bundle The July 2011 Notice invited and their increased market share at the and would post all offers on the Web interested parties to submit their two airports, among other factors.5 We site as soon as practicable after they are comments by August 29, 2011. The evaluated the public interest in this received. Each purchaser would be able comments we received are summarized transaction, examining both the benefits to submit multiple offers until the in the Appendix. We grant all motions closing date and time. for leave to file late comments, and all 2011) (extending the expiration date until the Additionally, to allow the new entrant comments to date were accepted into effective date of the final Congestion Management and limited incumbent carriers the docket. Rule for LaGuardia Airport, John F. Kennedy purchasing the divested slots to International Airport, and Newark Liberty establish competitive service, we 2009 Proposed Transaction and Waiver International Airport, but not later than Oct. 26, Request 2013). proposed to prohibit both Delta and US 2 As previously noted, the Order expires upon the Airways from operating any of the This petition for waiver follows a effective date of the final Congestion Management newly acquired slots during the first 90 prior joint waiver request by the same Rule at LaGuardia Airport, John F. Kennedy Joint Applicants. International Airport, and Newark Liberty 6 We proposed an exception from the subsidiaries International Airport, but not later than October 26, rule for Frontier Airlines, which while wholly- On August 24, 2009, US Airways and 2013. owned by Republic has a discretely different low- Delta requested a waiver of the Order to 3 14 CFR part 93, subparts K and S. cost carrier business plan, and whose operations 4 76 FR 45313. were confirmed to be consistent with LCC yields. allow a similar transaction to proceed. 5 76 FR at 45315. 76 FR at 45328. We responded to that petition in a
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February 2010 Notice,7 in which we Furthermore, the carriers assert that FAA may validly consider, as being in tentatively found that the transaction the recent United/Continental merger the ‘‘public interest,’’ ‘‘other factors’’ should not proceed unless the Joint enhanced United’s competitive profile including the fostering of competition in Applicants made more slots available at both Newark Liberty International the context of the slot program. The for new entrants. Based on our analysis Airport (EWR) and Washington Dulles ‘‘public interest’’ includes policies of competitive factors present at that International Airport, as well as at LGA furthering airline competition, as time, we proposed to approve the and DCA. Delta also states that this provided in 49 U.S.C. 40101(a)(4), (6), transaction subject to the Joint transaction will allow it to establish a (9), (10), (12)–(13) and (d). These goals Applicants disposing of 20 slot pairs (40 hub at LGA and address the competitive have been public policy since at least slots) at LGA and 14 pairs (28 slots) at advantage secured by American the time of adoption of the Airline DCA. Extensive comments were Airlines/British Airways through their Deregulation Act of 1978, Public Law received, including from the Joint antitrust immunity alliance. 95–504 (92 Stat. 1705), and they include Applicants. After review of the Statutory Authority To Grant Waiver (among others) maximizing reliance on comments, we granted the waiver Subject to Slot Divestitures competitive market forces; avoiding request in a Notice dated May 11, 2010 unreasonable industry concentration (May 2010 Notice), subject to the The Secretary and the Administrator and excessive market domination; and conditions set forth in the February have authority to grant the requested encouraging entry into air transportation 2010 Notice.8 Delta and US Airways did waiver of the LaGuardia Order, and to markets by new carriers. not choose to go forward with the grant the waiver subject to certain 10 The Proposed Transaction Serves the transaction subject to our proposed conditions. The FAA is authorized to Overall Public Interest, Although conditions, but instead appealed our grant an exemption when the Divestitures Remain Necessary To decision to the U.S. Court of Appeals for Administrator determines the Remedy Prospective Harms the D.C. Circuit.9 ‘‘exemption is in the public interest.’’ 49 U.S.C. 40109. The Administrator may In the context of our public interest 2011 Proposed Transaction ‘‘modify or revoke an assignment [of the analysis here, we evaluate the The transaction as now proposed by use of airspace]’’ when required in the prospective economic benefits of the the carriers is structurally similar to the public interest. 49 U.S.C. 40103(b)(1). transaction together with any potential transaction proposed in 2009. The Courts have upheld the conditions an resulting adverse economic carriers have presented the Department agency may place on its approval of a consequences. We have not determined with an analysis of the benefits they transaction to meet public interest that no economic harm would result assert will accrue from the transaction, standards.11 from the transaction, but rather that the and claimed that changes in the Our decision to subject the Joint adverse consequences that could economy and structure of the aviation Applicants’ waiver request to certain otherwise result can be sufficiently industry at DCA and LGA since 2010 slot divestitures is consistent with, and mitigated such that overall benefits can have dramatically reduced the economic carries out, the Department’s Section be realized. harms that we viewed as potential 40101(a) pro-competitive public interest 12 As noted above, the Joint Applicants adverse consequences of the original factors. It also complies with the contend that approval of the slot swap transaction. FAA’s public interest goals and would enable both carriers to more Among those changes are the market objectives. Congress did not preclude efficiently operate at the airports and penetration of low-cost carriers (LCCs) the FAA Administrator from permit more passengers and at both DCA and LGA. The carriers state considering the ‘‘public interest’’ to destinations to be served, thus creating that JetBlue, AirTran, and Frontier have include factors beyond ‘‘safety,’’ tangible benefits to consumers. They increased the number of LCC slots at ‘‘national defense’’ and ‘‘security.’’ argue that efficiencies will occur DCA by 46, thereby increasing the LCC Rather, Congress expressly directed the through upgauging of aircraft size at slots at that airport from 3.3% to 8.6%, FAA Administrator to consider those both LGA and DCA, thereby increasing exceeding the 6.5% share that would matters ‘‘among others.’’ Accordingly, as throughput and competition while have been obtained under the we articulated in our February 2010, reducing congestion and delay. In divestiture terms of our May 2010 May 2010, and July 2011 Notices, the addition, they contend that the facilities Notice. At LGA, the carriers point out transfer will enable Delta to create a that Frontier, AirTran, and Southwest 10 Petition for Waiver of the Terms of the Order Limiting Scheduled Operations at LaGuardia seamless hub at LGA, expand recently acquired slots, for a net Airport, 75 FR at 7307; 75 FR at 26,324–25; 76 FR competition and capacity, and preserve increase of 18 LCC slots, increasing the at 45,313–14. The Order was issued under the and enhance small community access at LCC slot share from 6.8% to 8.5%, FAA’s authority to ‘‘develop plans and policy for both LGA and DCA. closer to the 10.3% LCC slot share the use of the navigable airspace and assign by regulation or order the use of the airspace necessary Most commenters did not object to the sought in our May 2010 Notice. The to ensure the safety of aircraft and the efficient use Joint Applicants’ overall transaction per carriers also state that the Southwest/ of airspace.’’ 49 U.S.C. 40103(b)(1). se, and a number supported it as AirTran merger will intensify 11 See South Dakota v. Dole, 483 U.S. 203, 208 proposed by the carriers. For example, competition in these markets. (1987) (‘‘The Federal Government may establish and impose reasonable conditions relevant to the New York Travel Advisory Bureau Federal interest * * * and to the over-all objectives and a number of travel agents and 7 Notice of a Petition for Waiver of the Terms of thereto’’); N.Y. Cent. Sec. Corp. v. United States, corporate travel managers doing the Order Limiting Scheduled Operations at 287 U.S. 12 (1932) (upholding Interstate Commerce business in New York expressed LaGuardia, 75 FR 7306 (Feb. 18, 2010). Commission order approving the acquisition of the 8 Notice on Petition for Waiver of the Terms of the ‘‘Big Four’’ railroad companies by N.Y. Central support for the Joint Applicants’ waiver Order Limiting Scheduled Operations at LaGuardia upon the condition that it also acquire short line request, generally citing the potential for Airport, 75 FR 26,322 (May 11, 2010). railroads on certain terms). greater benefits to the economy of New 9 Delta Air Lines and US Airways v. FAA and U.S. 12 Neither the Joint Applicants nor other carriers York, the benefit of improvements Dep’t of Trans., Case #10–1153 (D.C. Cir. filed Jul. arguing against the waiver conditions cite any cases 2, 2010). On May 25, 2011, the U.S. Court of prohibiting the Secretary or Administrator from proposed for the infrastructure at Appeals dismissed this suit by mutual agreement of considering pro-competitive objectives as being in LaGuardia, and prospects for improved the parties. the public interest. tourism and travel opportunities.
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However, other comments, especially Roanoke-LaGuardia service and other argue that circumstances have not from other air carriers, point to the reductions in travel options at Virginia changed substantially enough to merit potential adverse competitive impacts of airports. Mayor Bowers of Roanoke, and approval of the waiver request, and that, increased hub operations at DCA and various other businesses, educational in any event, the Department was aware LGA. In particular, Southwest Airlines institutions, and private citizens note of these circumstances when it issued Co., citing a report prepared for it by that US Airways currently serves the July 2011 Notice. Believing the Campbell-Hill Aviation Group, LLC, Roanoke from LaGuardia with three proposed slot remedy to be inadequate, argues that the transaction would permit daily roundtrips, service that could be some commenters—including Delta and US Airways to ‘‘squander eliminated if the transaction were Southwest, Jet Blue, Frontier, and Spirit, public resources’’ by using their larger allowed to proceed. as well as ACAA—further urge us to slot holdings to establish hubs at LGA We agree that grant of the waiver will require the divestiture of roughly 30% and DCA that will be dependent on an lead to some alterations in the Delta and more slots, as we did under different even larger number of small regional US Airways service patterns and circumstances in our initial review. aircraft feeder flights to establish and capacity per departure, or average In our initial review of the proposed maintain hub operations.13 Southwest throughput. However, the carriers have 2009 transaction, we concluded that the maintains that hub development at asserted that primary benefits of the concern about anti-competitive effects these slot-controlled airports would transaction will include enhanced was compounded by the fact that only reinforce the inefficient slot service to smaller communities on an LCCs—which create the most utilization already in place that could overall basis. competitive impact by their ability to best be remedied by supporting In evaluating the public interest in dramatically lower fares and increase divestitures to carriers that would this waiver petition, we have carefully the volume of passengers in a market— efficiently operate slots with large assessed the benefits and possible had only a limited presence at the aircraft to support and benefit local adverse consequences of the transaction, affected airports. The Department’s May Washington and New York passengers. seeking a balanced and proportional 2010 Notice, and the divestitures it Moreover, Southwest contends that the approach to maintain or enhance access would have required, were premised on consequences for the public of this to small communities and to provide data recited in the Notice finding that proposed reallocation of markets would greater efficiencies for Delta and US collectively, LCCs had only 3.3% of slot be higher fares, less competition, and Airways that they will in turn pass on interest holdings at DCA and 6.8% at fewer service options at both airports.14 to consumers. As we acknowledged in LGA.17 The Department was aware at While we acknowledge Southwest’s the Final Notice concerning the Joint that time of JetBlue’s transaction with claims regarding potential inefficiencies Applicants’ initial proposal, the American Airlines to acquire its first resulting from hub development at slot transaction does raise concerns as to DCA slots,18 but JetBlue’s service was controlled airports, we must consider levels of airport concentration, the not initiated until November of 2010,19 both potential operating inefficiencies number of monopoly or dominant six months after the Final Notice was and expected network benefits typically markets in which increased pricing issued. Our review and assessment of resulting from hub development or power can be exercised, and the the needed number of divestitures was expansion. The Joint Applicants claim potential for use of the transferred slots focused on actual, not planned, service, that numerous benefits will accrue to in an anticompetitive manner.15 recognizing the fact that agreements can consumers as a result of their However, as we believed then, the be modified and plans can change. transaction. Among the more appropriate remedy for us to adopt is Southwest also argued that DOT must compelling benefits that they articulate, not to deny the petition but rather to have been ‘‘fully aware’’ at the time of we are most convinced by their require divestitures that address those the Final Notice of the ‘‘Republic to arguments that development of a LGA concerns. We believe the transaction’s Frontier’’ transaction, involving 18 slots hub will lead to enhanced service to promised benefits for the public— at DCA and 13 at LGA.20 However, the small communities (even with the small particularly in light of the increased announcement was not made until mid- aircraft that Southwest contends would penetration of low cost carriers at the April 2010 that Midwest Airlines be used) and improved competition airports since the time of our last (which had been acquired by Republic) versus other east coast hubs, including review—are sufficient for us to conclude would begin flying under the Republic United’s Newark hub and US Airways’ that grant of the requested waiver with name, with the Midwest brand being hub in Philadelphia. specified remedies is in the public phased out in 2011.21 And, regardless of In terms of preserving and enhancing interest. the announcement, it was uncertain at small community access at LGA and Adequacy of These Divestitures To that time whether the Midwest DCA, the Dane County Regional Airport, Address the Transaction’s Prospective operations assumed by Frontier would serving Madison, WI, expresses support Harms be marketed with yields consistent with for the overall transaction, but LCC operations, so it would have been maintains concern that the nonstop The Department’s July 2011 Notice, premature to then count Frontier’s new service from Madison to LGA and DCA, proposing to grant Delta’s and US slots as representing LCC slot increases. currently provided by Delta, could be Airways’ renewed request for a waiver The third major change in discontinued if Delta were required to subject to the condition that, among circumstances was the AirTran- divest some of its slots to other carriers. other things, the carriers divest 16 slot In addition, a number of Virginia pairs at LGA and 8 slot pairs at DCA, 17 75 FR 26,323. interests express concern about the was premised on the view that 18 See 75 FR 26,323, n. 11, and 76 FR 45,315– overall transaction, focusing on the circumstances had in fact changed at the 45,316. 19 See Comments of JetBlue, FAA Docket 2010– possibility of losing established nonstop affected airports since the time of our initial review.16 Several airlines in 0109, Aug. 30, 2011 at 6. 20 See Comments of Southwest Airlines, FAA 13 Comments of Southwest Airlines Co., FAA competition with the Joint Applicants Docket 2010–0109 at p. 6. Docket 2010–0109 at pp. 13–14 and Exhibit WN– 21 See, e.g., Milwaukee Sentinel-Journal, 115. 15 75 FR at 26,324 (May 11, 2010). ‘‘JSOnline,’’ http./www.jsonline.com/business/ 14 Id., at 4–8. 16 76 FR 45,315. 90750954.html, April 13, 2010.
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Southwest merger, which was not supplied data and analysis to show that will ‘‘permanently lock out’’ low-fare announced until the Fall of 2010, well fares across all markets had fallen.25 The competition.26 Southwest claims that it after the May 2010 issuance of the Final commenters do not challenge these data. will be virtually impossible for LCCs to Notice. Given the size of the transaction Their opposition to the remedy now expand at these airports because and its potential to introduce being proposed focuses on the number already-scarce slots will become even Southwest’s brand, passenger loyalty, of LCC holdings as a percentage of total less available, and after the transaction and route network to a broader array of holdings. However, we view the is consummated, Delta and US Airways customers, this merger is an important increasing levels of LCC penetration and will become the most logical high changed circumstance that could not the associated favorable effects on fares bidders for any slots that may come on have been considered in May 2010 but across a number of markets as more the market.27 Southwest’s assertions do must be considered now.22 significant, and these important not take into account the full In our subsequent review, the developments support our decision to competitive landscape. While it is true Department focused on actual LCC allow the slot swap to proceed so long that Delta and US Airways will penetration and determined that the as there is an appropriate divestiture of significantly increase their presence at LCC shares at the affected airports had slots auctioned in sufficient numbers to LGA and DCA, respectively, they will increased markedly. At DCA it had gone qualified new entrants or limited not be the only carriers with the from a de minimis share of 3.3% to incumbents to mitigate the potential resources to acquire new slots, which 8.5%; at LGA it increased modestly competitive harm resulting from the are still likely to become available over from 6.9% to 8.2%.23 These changes in transaction. time, as they have thus far. Southwest LCC holdings, notably the addition of a A number of commenters contend and other carriers have cash on hand, as new competitor at DCA in JetBlue and that we could do more to enhance well as developed route networks and the larger portfolio of a merged competition at both these airports than other assets that can be leveraged for Southwest/AirTran, portend a gradual we proposed last July, by requiring more greater access to LGA and DCA. shift in the competitive dynamics. slots to be divested. However, in the In summary, we believe the approach While the changed circumstances particular circumstances of this case, we taken in the July 28 Notice remains between our initial and subsequent believe it appropriate for us to proceed appropriate under the current reviews fall well short of addressing all with a remedy that reallocates only the circumstances, and is justified by recent concerns at the affected airports, they number of slots necessary to address the changes in the competitive and are significant and cannot be competitive harm caused by the operating environments at DCA and overlooked. The changes show that transaction, while still preserving the LGA. LCCs have gained a competitive beach benefits of the transaction. Carrier Eligibility for the Divested Slots head at DCA and LGA that is not likely Our approach focuses on the to be reclaimed any time soon. incremental competitive change and the Some commenters, including JetBlue Aside from the timing of the events, potentially strong effect of new entrant and Virgin America, assert that we may the Department also considered the competition that is possible with a not direct the Joint Applicants to divest magnitude of the changed critical mass of slots. It does not address certain DCA and LGA slots to new circumstances. We supplied evidence to pre-existing conditions that affect entrant and limited incumbent carriers show that our reliance on LCC competition at the airports and, in all having fewer than five percent of the penetration to discipline fares justified likelihood, would continue to affect total slot holdings at the respective a departure from the initial decision. competition even if we required 30% airports, because the ‘‘below five For example, in the July 28, 2011 more slots to be divested. Stated another percent’’ threshold is contrary to Notice, we determined that average way, our objective has not been to add statutory definitions of limited weighted yields, used as a proxy for as much new service by new entrants incumbents or otherwise outside the fares, had decreased in the DCA–BOS and limited incumbents as possible but scope of the FAA’s statutory authority. market as a result of JetBlue’s entry in rather to rely to the maximum extent on We disagree. As an initial matter, the 2010, and had continued to decrease in the introduction of a critical mass of FAA routinely imposes special the LGA–IND market following new services, anticipating that those conditions that must be met in order to AirTran’s entry in 2009.24 At DCA, we services will have an oversized effect on either assure an equivalent level of competition across a number of markets safety (not an issue in this case) or to 22 Southwest argued as well that a few smaller sufficient to address the potential ensure that the public interest is met. transactions affecting LCC presence at Reagan competitive harm resulting from the Nothing in the Administrator’s authority National or LaGuardia had occurred prior to the transaction. The Department laid a to issue exemptions prevents the FAA May 4, 2010 Final Notice that the Department must foundation for this approach by have known about but did not raise until the July from tailoring those conditions to the 2011 Notice was issued in connection with the Joint emphasizing the effect of new entrant/ circumstances surrounding the Applicants’ revised proposal. The largest of these LCC services on prices across a number exemption request. In the context of the was a trade of slots between Continental and of markets. That foundation is not in July 2011 Notice, we used the term AirTran: AirTran operated the slots but Continental dispute. Seen in this light, the final slot remained the holder. We generally looked at ‘‘limited incumbent’’ in a generic sense holdings in the Final Notice but subsequently remedy need not necessarily be to mean an airline with a limited, or refined our analysis to include operations as mathematically congruent with the small, presence at the airport. We appropriate in the July 2011 Notice. In any event, increased LCC penetration, as intend, of course, to provide the Department clearly specified in the Tables in commenters suggest. The remedy is the July 2011 Notice the distribution of slots opportunities for competition and low- actually considered in the May 2010 Notice and the proportional and effective to address the fare service at DCA and LGA by origin for each change that was reported. See Table possible adverse consequences of the allowing such carriers, as well as new 5 at 76 FR 45,323 and Table 6 at 76 FR 45,325. transaction, while still preserving its entrant airlines, to purchase divested 23 See 76 FR 45323–45325. See also 76 FR 45327. public benefits. slots. Due to minor inconsistencies in rounding, the May Southwest asserts that the remedy 11, 2010 Notice indicated that the pre-transaction LCC share at LGA was 6.8%, while the July 28, must be larger because the transaction 26 Comments of Southwest Airlines Co., Docket 2011 Notice indicated a 6.9% share. 2010–0109 at 4 (Aug. 29, 2011). 24 See 76 FR 45,327. 25 See 76 FR 45,327. 27 Id., at 6.
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We are not obliged to confine the service.30 Moreover, use of a 5% exemptions described in Section category of air carriers eligible to standard, rather than setting the 41716(a) to any carrier whose LGA slots purchase slots to those ‘‘limited threshold at a lower level, would and slot exemptions would total more incumbent air carriers’’ holding or enlarge the number of potential than 20. operating ‘‘fewer than 20’’ slots or slot competitors for the divested slots, JetBlue and Virgin America also exemptions, as JetBlue suggests. Rather, creating a more robust market for them comment on Frontier’s eligibility. Our that statutory definition of ‘‘limited and a greater likelihood that the July 2011 Notice tentatively found that incumbent’’ (49 U.S.C. 41714(h)(5)) awarded slots would be utilized in an Frontier, a carrier with limited holdings applies only to specific circumstances efficient and effective manner. at DCA and LGA, would qualify as an not relevant here.28 The ‘‘limited The ‘‘five percent rule’’ is the same as eligible bidder for slots.32 We explained incumbent’’ definition applies, for that adopted in the May 2010 Notice in that it was appropriate for Frontier to example, to the Secretary’s criteria for which we granted the joint waiver bid even though it was wholly-owned awarding within-perimeter slot request of the carriers conditioned on by Republic, which holds more than 5% exemptions at DCA. 49 U.S.C. divesting certain LGA and DCA slots to of slots at DCA. The Department noted 41718(b)(1). The definition also applies eligible new entrant and limited that Frontier has a unique business plan to the FAA’s High Density Rule (HDR) incumbent carriers, which we defined and relationship in the Republic protocols for withdrawing slots and as those: structure, and confirmed that its yields distributing slots in a lottery at DCA. 14 having fewer than five percent of total slot have remained consistent with those of CFR 93.213(a)(5), 93.223(c)(3), holdings at DCA and/or LGA, do not code LCCs. 93.225(h). Neither the statutory nor share to or from DCA or LGA with any carrier JetBlue and Virgin America contend regulatory definitions of ‘‘limited that has five percent or more slot holdings, that Frontier should not be eligible. incumbent’’ cabin the Department’s and are not subsidiaries, either partially or JetBlue’s argument centered on the authority to promote the public interest. wholly owned, of a company whose assertion that the Department must combined slot interest holdings are equal to The Department has determined that or greater than five percent at LGA and/or restrict bidding to carriers with 20 or fashioning a reasonable class of carriers DCA. fewer slots, and that Frontier is owned that may purchase divested slots for by a carrier whose slot holdings far 75 FR at 26,337. purposes of providing competition at exceed the ‘‘20 or fewer’’ threshold.33 congested airports is an appropriate and JetBlue also states that our definition The ‘‘20 or fewer’’ issue was addressed proportionate remedy in these of carriers eligible to purchase divested above. Virgin America also cites circumstances. LGA slots unlawfully ignores a Frontier’s ownership as a concern, but purported statutory mandate to make up Moreover, Congress’ directive to the suggests that it would be too difficult for to 20 LGA slot exemptions available to the Department to monitor whether Secretary to grant certain slot new entrants and limited incumbents.31 exemptions to new entrant or limited Frontier’s business plan was, in fact, In making this argument, JetBlue claims delivering lower fares as intended.34 incumbent carriers at LGA and JFK that the ‘‘interim slot rules at New York expired upon the January 1, 2007 However, Frontier’s inclusion in the airports,’’ enacted by Congress in the pool of eligible bidders is consistent statutory termination of the HDR at Wendell H. Ford Aviation Investment those airports. 49 U.S.C. 41716(b), with our objective of crafting a remedy Reform Act of 2000 (AIR–21), entitled to mitigate the loss of competition 41715(a)(2). The Department is under no all new entrant and limited incumbent statutory or regulatory directive to apply associated with the Delta/US Airways carriers to receive up to 20 LGA slot slot swap. Frontier operates as a the ‘‘fewer than 20’’ threshold to exemptions. 49 U.S.C. 41716(b). JetBlue determine the class of carriers eligible to separate business within the Republic suggests that the divestiture must first corporate structure, with a low-cost purchase the divested slots in this favor those carriers with less than 20 proceeding. carrier business plan and yields slots before offering an opportunity for consistent with low-cost operations. In the Department’s February 2010 those with more than 20 slots to Republic’s other slots are pledged for Notice, in connection with the Joint purchase the divested slots. use on a long term basis by Republic’s Applicant’s initial request, we proposed AIR–21 expired at LGA along with the other business, which operates regional the use of a five percent threshold, HDR. Any articulation of Congressional aircraft on behalf of mainline carriers, because carriers having slot holdings purpose in enacting AIR–21 simply no and the slots are therefore not available above that point provide a minimum longer applies at LGA. Thus, we reject to exert competitive discipline on level of competitive service sufficient to JetBlue’s argument for the reasons set incumbent carriers. Should Frontier be affect pricing in the market.29 forth above. In addition, JetBlue’s successful in bidding on the slots being Restricting eligibility to new and reading of Section 41716(b) is overly divested here, the approval to operate smaller carriers below that threshold generous to the new entrant/limited them will be conditioned upon its would help attract carriers that offered incumbents. This provision did not maintaining a low-cost carrier business the prospect of increased efficiencies entitle each applicant to 20 LGA slot plan and operating the divested slots and innovations, as well as the ability exemptions, as JetBlue claims. Rather, it with yields consistent with LCC to increase throughput at the airports, so directed the Secretary, subject to operations for the duration of the five- long as they had a sufficient number of procedures set out in Section 41714(i), year minimum hold requirement. slots to establish sustainable patterns of to grant slot exemptions to new entrants A final eligibility issue concerns or limited incumbents at LGA ‘‘if the Southwest Airlines and AirTran. In the 28 49 U.S.C. 41714 (h) provides that the number [ ] granted * * * does not July 2011 Notice, the Department definitions set forth in that section, including the exceed 20 * * *.’’ 49 U.S.C. 41716(b). recognized the merger of Southwest and definition of ‘‘Limited incumbent carrier,’’ only In other words, it prohibited the apply ‘‘[i]n this section and sections 41715–41718 and 41734(h) * * *.’’ Secretary from granting the LGA slot 32 76 FR 45,330, n. 40. 29 See, e.g., Gimeno, 20(2) ‘‘Reciprocal Threats in 33 Comments of JetBlue at 13 (Aug. 29, 2011); Multimarket Rivalry: Staking out ‘Spheres of 30 75 FR at 7310–11. Reply Comments of JetBlue at 3 (Sept. 13, 2011). Influence’ in the U.S. Airline Industry,’’ Strategic 31 Comments of JetBlue Airways, FAA–2010– 34 Comments of Virgin America at 11–12 (Aug.29, Management Journal 101 at 110. 0109, at 19–22 (Aug. 29, 2011). 2011).
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AirTran,35 but Westjet and Spirit seek proposes smaller bundles to allow the diffuse competition, thus benefiting the clarification of Southwest/AirTran’s largest number of carriers with different Joint Applicants, and wasting a rare status as potential bidders for divested types of operations to participate. opportunity to inject strong and slots.36 Southwest and AirTran are JetBlue argues that new LCC entry at sustainable low-fare competition at merging, and therefore have every DCA makes it no longer necessary for airports that desperately need it. bundles of slots to be spread throughout incentive and—unlike Frontier—ability After reviewing the competing the day. Instead, JetBlue states that to combine their assets to exert arguments, we have concluded that eligible carriers should be able to bid on competitive influence in the market. there is likely to be greater overall Southwest and AirTran thus will be individual slot pairs to complement public benefit if the larger (i.e., 8 slot required to bid as a single unit; they are their existing schedules. Virgin America pair) bundles are retained. Under their eligible to do so because their combined claims that the bundles are proposal, Delta and US Airways are not holdings do not exceed 5% at either unnecessarily large and would likely committed to any particular markets for airport. increase market concentration and impair competition. Sun Country defined periods. Each carrier would be Slot Bundles of Eight Pairs Will Best contends that it would be unable to free to discontinue any of the proposed Promote Competitive Discipline at DCA utilize all of the slots in a given bundle routes and initiate others. With that and LGA and that the price for the large bundles flexibility, they could choose to use In the Department’s earlier analysis, would be prohibitive. West Jet proposes their increased slot holdings to target we expressed concern over increased that smaller bundles would lead to carriers with more limited slot holdings, levels of airport concentration, which increased participation by smaller LCCs. for example by increasing their together with (1) an increase in the Spirit, in its most recent filing, seeks a roundtrips in competitive markets and number of monopoly or dominant free distribution of slots ‘‘into sets of ‘‘sandwiching’’ competitor flights. A markets in which increased pricing usable pairs.’’ 37 Finally, Frontier states restructured remedy consisting of power could be exercised, (2) the that it, along with every other LCC filing smaller bundles of slots to more carriers, prospect for higher fares in some comments with the exception of as proposed by Spirit, JetBlue, Allegiant, markets, and (3) the potential for use of Southwest, supports smaller bundles, WestJet and Virgin America could make transferred slots in an anti-competitive maintaining that such a structure would certain new entrants highly vulnerable manner, warranted conditioning expand the pool of LCCs and to such scheduling changes and approval on the carriers’ agreement to destinations gaining new or enhanced frustrate the competitive responsiveness divest a number of slots. Given all of access to DCA and LGA and would we are seeking. these concerns, we asserted that limited reduce the relative concentration of slot Under the approach we take by this divestitures at both airports would lead holdings among just a few carriers. Notice, the bulk of the benefits derived Southwest contends that packaging to an injection of additional competition from the divestitures required as a slots into large bundles for allocation from other carriers, which may condition to this waiver will be from effectively mitigate these prospective would be the most effective competitive new entrant or limited incumbent harms. response to the larger Delta and US carriers using the divested slots, and in In our May 2010 Notice we said that Airways positions at LGA and DCA, order to be effective the bundles of an effective remedy must (1) provide a especially if the divested slots are sufficient number of slots to allow other concentrated in the hands of a single remedied slots must be structured in carriers to mount an effective strong competitor at both airports. such a way to enhance the likelihood of competitive response, (2) define the Southwest maintains that the sustainable service. Diminishing the pool of eligible carriers to include those Department should avoid trying to size and extensive time of day coverage with the greatest economic incentive to ‘‘keep everyone happy’’ by placing of remedied bundles, an approach use the slots as intensively as possible arbitrary restrictions on the allocation promoted by Spirit, JetBlue, Allegiant, and exert competitive discipline, and (3) process that will only result in slots WestJet, and Virgin America, will not ensure that the bundles of divested slots being under-used or even forfeited by create the degree of competitive impact are suitable for a commercially viable carriers operating insufficient required to compensate for the expected service pattern and structured frequencies and therefore unable to harm to be generated from this proportionate to the slots that are part mount an effective response and transaction. of the slot swap. provide meaningful price discipline to We find that establishing bundles of Working from these criteria, we the strengthened Delta and US Airways. slots for sale will enable an eligible proposed to bundle the slots in 8-pair Southwest cites the Campbell-Hill carrier to purchase a sufficient array of units at each airport, meaning that there report appended to its comments that slots to operate and maintain would be one bundle at DCA and two ‘‘splitting the slots arbitrarily among competitive service throughout the day. at LGA. In the May 2010 Notice, we multiple carriers would only dilute the Bundling will assist the purchasing expressed our tentative belief that this impact of the new service vis-a`-vis the carrier in initiating or increasing service approach would maintain high incumbents and provide fewer in an operationally efficient and pro- competitive discipline levels and would competitive benefits to the public.’’ 38 competitive manner. Packaging more be preferable to dividing the slots into Finally, Southwest concludes that slots in fewer bundles is the best smaller packages that could cause dividing the small number of divested approach to optimize competitive underutilizations or inefficiencies. slots among several low-cost, low-fare discipline. Furthermore, bundling eight In response, several carriers that carriers, as Frontier supports, would be slot pairs at DCA and two bundles of would be designated as new entrants/ counter-productive, as the modified eight slot pairs each at LGA will help to limited incumbents filed comments bundles would generate only weak and regarding slot bundles. Allegiant avoid underutilization and inefficiencies of resources, including 37 Comments of Spirit Airlines, Inc., Docket No. 35 76 FR 45,316. 2010–0109, at 5 (Aug. 29, 2011). facilities, aircraft and staffing, that may 36 Comments of WestJet at 2, 9 (Aug. 29, 2011); 38 Comments of Southwest Airlines Co., Docket result from more bundles containing Comments of Spirit at 14, n. 23 (Aug. 29, 2011). No. 2010–0109, App. at 15 (Aug. 29, 2011). fewer slot pairs.
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Procedures for Transferring Divested to a single purchaser, and Southwest parties other than the carriers.40 Slots argued that we should dispense with the Additionally, Spirit asserts that limited In connection with the proposed proposed restriction that an eligible incumbent airlines are entitled to the auction mechanics for the purchase by carrier may purchase no more than one divested slots at no cost under the pro- eligible carriers of the divested slots, of the LGA bundles. However, JetBlue competitive policies in Section 40101(a) Southwest objected to the imposition of asserted that our procedures should not and the prohibition on purchases or a deadline for bids. It believes that a enable one carrier to purchase all of the sales of slots in the LGA Order. Spirit deadline such as the one we proposed available slots, but rather should also expresses concern that the Joint creates disincentives for early bidding enhance the competitive benefits to the Applicants could enjoy a ‘‘financial and is subject to manipulation through public by giving greater opportunities to windfall’’ by being able to retain the new entrants and limited incumbents in last-minute bidding. It proposes a proceeds of a sale, citing a 2007 FAA light of the new and different services different approach, with features like Notice regarding operating limitations at they provide. Frontier offered similar minimum increases between offers and LGA indicating that rights held under comments. In response, the Joint time limits on submitting a higher offer slot rules would end on December 31, Applicants afforded ‘‘deference to the following the most recent offer. 2006.41 Department on how it chooses to We disagree. In order to allow the sale 39 The Joint Applicants respond that to be completed, there must be some conduct the slot auction.’’ Upon further reflection, we believe their application does not contemplate closing time for offers. Southwest’s that having two carriers receive slots at that slots would be divested without system would create a moving deadline LGA achieves the better result, as it will compensation, and that they would not based on how much time has elapsed appropriately balance our goal of a have offered to divest any slots if they since the previous bid. Different buyers remedy introducing additional believed that would be required. will have different strategies, and competition at the airports with our submitting an offer at the last minute is Allowing the Joint Applicants to belief that the number of slots obtained just one such strategy. For example, a retain the proceeds from the sale of the by each carrier must be sufficient to bidder might equally attempt a high divested slots in this case is within our assure that they can be used effectively preemptive ‘‘shut out’’ offer. We cannot authority. Since 1985, the FAA has to stimulate competition. Thus, we will predict the various strategies, and, permitted carriers to purchase, lease, modify the position on this issue that therefore, choose not to depart from our sell, and otherwise transfer slots for we had taken earlier and require that the proposal, which will be easier for the consideration under the HDR’s Buy-Sell carriers package the divested slot pairs FAA to manage. Rule.42 The FAA’s regulatory Once the sales period closes, the FAA at LGA into two bundles which must be permission to buy and sell slots is will determine the highest offer for each sold to two separate eligible carriers, as consistent with the complementary HDR bundle. If each bundle receives only a further discussed below. provision that slots do not represent a In the unlikely event that there are no single offer, the FAA would notify the property ‘‘right’’ but a privilege subject offers for a slot interest, the slot interests seller by forwarding the purchaser’s to FAA control and encumbrances.43 will revert automatically to the FAA. If identification. If one eligible carrier had Furthermore, a secondary market in necessary, the FAA may announce at a made the highest purchase offer on slots conforms to the pro-competitive later date a means for disposing of a slot multiple bundles at LGA, the FAA policies of the Airline Deregulation Act interest that attracts no purchase offer. would determine which offer is valid Alternatively, under the Order, the FAA by, among other things, relying on based on preference ranking. The could simply retire the slot as a ‘‘competitive market forces’’ and successful bid for the other LGA bundle congestion mitigation measure. We do ‘‘encouraging entry into air will be the next-highest offer from a not expect that this need will arise. transportation markets by new and carrier that remains eligible to purchase We have adopted our proposal to existing carriers.’’ 49 U.S.C. 40101(a)(6), the slots. This information will be conduct sales by a cash-only, FAA (12). Accordingly, the FAA is under no forwarded to the respective seller. The ‘‘blind’’ web site. A blind-only statutory obligation to have the divested FAA will notify the selling and mechanism has the capability of slots allocated to eligible carriers free of purchasing carriers to allow them to maximizing the competitive potential of charge. Additionally, a sale of the slots carry out the transaction, including any the divestiture packages, as that sale is not a financial windfall but allows the gate and ground facilities arrangements. method would target the potential Joint Applicants to maximize the value The full amount of the proceeds could competitors with the greatest economic of their slots as originally intended as be retained by the selling carrier. The incentive to use slots as intensively and part of the larger transaction. 75 FR at seller and purchaser will be required to efficiently as possible. notify the FAA that the transaction has 40 The Airports Council International (ACI–NA) been completed and certify that only Retention of the Sale Proceeds by the argued that slots should be treated as community monetary consideration will be or has Joint Applicants assets that should be used to benefit the been exchanged for the slots. communities and airports, rather than carriers, and A number of commenters, including the Consumer Travel Alliance argued that the slots In the July 2011 Notice, we had several air carriers, question our contemplated in the transaction are not assets of the proposed that if the highest bidder for proposal to allow the Joint Applicants to air carriers and should be treated as property of the both LGA bundles was the same eligible retain the proceeds from the slot sales American public. These commenters commonly carrier, the amounts of the offers would referred to FAA’s regulations that state that ‘‘[s]lots we are requiring as a condition to this do not represent a property right but represent an be communicated to the seller and the waiver. These, and some others, argued operating privilege subject to absolute FAA seller could choose to accept both that the current owners received the control.’’ 14 CFR 93.223(a). highest offers instead of the highest slots from the FAA without payment, 41 Comments of Spirit Airlines, FAA–2010–0109, offers of two different eligible bidders as at 4, 10 (Aug. 29, 2011), referencing FAA’s Notice are not the owners of slots, and that any of Order on Operating Limitations at New York identified by the FAA. In its comments, divestitures should serve to benefit LaGuardia Airport, 71 FR 77854, 77857 (Dec, 27, the Port Authority of New York and 2007). New Jersey (Port Authority) would 39 Response of Joint Applicants to Show Cause 42 50 FR 52195 (Dec. 20, 1985); 14 CFR 93.221. allow more than one bundle there to go Order, FAA–2010–0109, at 3 (August 29, 2011). 43 14 CFR 93.223.
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7311.44 Finally, the purchasers of the purchasing carrier actually occupies the Finally, WestJet filed comments LGA slots will receive the same interest airport facilities. Nor do we agree with urging that Customs and Border that current slot holders at LGA have. the Port Authority’s suggestion to Protection pre-clearance procedures be This interest is comparable to that extend the proposed six-month use-or- made available at the applicable which Delta will receive in connection lose waiver due to potential difficulties Canadian airport in the event that any with its purchase of the US Airways’ with arranging facilities for requesting successful bidder intends to use its slots LGA slots. Our waiver of the LGA Order carriers. for service to Canada, or in the transfers to Delta the same interests that Rather, we fully expect both the Port alternative that FAA extend the six- month startup grace period in order to US Airways currently holds under the Authority, as the operator of LGA, a allow the bidder to obtain the necessary terms of that Order. large hub, and the Metropolitan After review of these comments, we pre-clearance privileges. The granting of Washington Airports Authority remain persuaded that both our earlier such privileges is within the purview of (MWAA), as the operator of DCA, also position on these issues and our the Department of Homeland Security a large hub, to make facilities available, approach in granting the petition with (DHS), not FAA, and WestJet or any with reasonable dispatch, to requesting divestitures are the correct ones. other interested party may make carriers and within the six-month appropriate inquiries on this issue with period after the purchase of the divested Implementation in Tranches DHS. Should there be extenuating slots. The Port Authority and MWAA In the July 2011 Notice, the circumstances with preclearance Department proposed to prohibit each each are bound by DOT federal grant matters in connection with compliance transferee Joint Applicant from assurances to provide reasonable and with the six-month startup provision, operating any of the newly acquired competitive access at their respective the Department will be available to slots during the first 90 days after the airport facilities to requesting airlines work with the carrier and other closing date of the sale of the divested and airlines wishing to expand service appropriate parties as noted above. slots. We further proposed to prohibit at their airports. They must file Other Issues Raised by Commenters them from operating more than 50 competition disclosure reports with the percent of the total number of slots FAA if they fail to do so. Additionally, Among its other comments, Virgin included in the Joint Applicants’ they have each taken action, under their America, Inc. urges the Department to Agreement between the 91st and the airport competition plans, to reduce create a ‘‘strategic slot reserve,’’ with the 210th day following the close date of the barriers to entry and enhance divested slots, so that if (1) the available sale of the divested slots. After that competitive access at their airports. slots were not purchased by eligible time, we would allow the transferee to Furthermore, the Department and the participants in the divestiture process, operate the remainder of the slots. The FAA are available to facilitate access at (2) the purchasers did not meet purpose of these prohibitions was to appropriate airport facilities if minimum utilization requirements in allow the new entrant and limited necessary. operating the slots, or (3) the purchasers incumbent carriers that purchased the Additionally, we note that Airports no longer met new entrant or limited divested slots a sufficient period to Council International—North America incumbent eligibility requirements, the establish competitive service, without (ACI–NA) comments that the grant of slots would be reserved for allocation to interference from new operations of the this waiver, subject to the conditions only eligible new entrants and limited Joint Applicants. specified in the initial Notice, would incumbents. The Joint Applicants have not ‘‘unlawfully * * * usurp the The Department had already proposed objected to this proposal, nor have proprietary right of the Port Authority certain alienation limitations in the others contended that it is unfair or and the Metropolitan Washington Notice to ensure that the divestiture impractical. We will therefore finalize Airports Authority to control how their process did not enable or result in this aspect of the waiver as it had been facilities at LGA and DCA were used.’’ 45 transactions that undermined the pro- proposed. Under 49 U.S.C. Section 40103(b)(1), competitive purpose of the proposal. however, it is the FAA, not the airports, Under our tentative proposal, the Availability of Facilities to Purchasing successful bidders would not be Carriers that has the authority ‘‘to develop plans and policy for the use of the navigable permitted to sell or lease the slots for 12 Our Notice proposed to require the airspace and assign by regulation or months following purchase, although selling carrier to make airport facilities order the use of the airspace necessary one-for-one trades for operational available to the purchaser under to ensure the safety of aircraft and the purposes would be permitted. The slots reasonable conditions only if the efficient use of airspace.’’ This power could, after the initial 12 months, be purchasing carrier lacks access to includes the authority to limit flight sold, traded, or leased to any carrier facilities and is unable to obtain such operations at congested airports and to that, at the time of the sale, trade, or access from the airport operator. We see distribute and allocate landing and lease, qualified as a new entrant or no need to change this proposal or, as takeoff reservations (slots) to designated limited incumbent, for four years suggested by Southwest, to waive the air carriers at controlled airports. thereafter, with all restrictions on use-or-lose period until such time as the Further, because the airports are under alienation thus ending five years federal obligations to make facilities following the initial sale. If by some 44 Spirit and the Air Carrier Association of available, on a reasonable basis, to chance slots went unsold, they would America contend that the Joint Applicants did not requesting carriers, we fully expect the revert to the FAA and, if appropriate, it seek compensation for the divested slots. Comments would announce at a later date whether of Air Carrier Ass’n of Am., FAA–2010–0109, at 3 airports to work with the carriers as they (July 1, 2011); Comments of Spirit Airlines, FAA– have in the past, in providing it would retire them to reduce 2010–0109, at 2 (June 24, 2011). The Joint accommodation to requesting carriers. congestion or make them available to Applicants dispute this allegation, and state that other carriers. ‘‘[t]hey would not have offered to divest slots if they After considering Virgin America’s had believed that they would be withdrawn and 45 Comments of Airports Council Int’l—N. Am., reallocated without compensation.’’ Response of FAA–2010–0109, at 4 (Aug. 30, 2011). We note that comment, DOT believes the July 2011 Joint Applicants to Show Cause Order, FAA–2010– neither the Port Authority nor MWAA has made Notice’s approach better implements a 0109, at 4 (Aug. 29, 2011). this assertion on their own behalf. pro-competitive market environment at
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the airports and better balances congestion at the three airports is under provide the following information for competing objectives in the bidding development in a different rulemaking the divested slots: process. Virgin America’s proposal does process, and comments to this docket (1) Operating Authorization number not address sale, trade or lease issues, cannot serve as a substitute for (LGA) or slot number (DCA) and time; and after review of other comments we participation in the correct proceeding. (2) Frequency; are confident both that the bidding (3) Effective Date(s); Terms of the Final Waiver Notice process will attract robust competition (4) Other pertinent information, if for the slots, and that the successful Accordingly, we will grant the waiver applicable; and bidders will be highly motivated to requested by the Joint Applicants, (5) Carrier’s authorized representative. The FAA will post a notice of the maintain high utilization rates. conditioned on: the divestiture of 32 available slot bundles on the FAA Web Moreover, creating permanent slots at LGA (16 arrival and 16 site at http://www.faa.gov shortly after encumbrances on the slots with ‘‘in departure) and 16 slots at DCA, through receiving all required information from a blind, cash-only sale through an FAA- perpetuity’’ restrictions would likely the sellers and, if practicable, will managed Web site to limited incumbent generate greater caution by carriers in publish the notice in the Federal and new entrant carriers having fewer bidding, and produce greater burdens in Register. The notice will provide seven than five percent of the total slot administering the slot rules. business days for purchase offers to be San Francisco International Airport holdings at DCA and LGA respectively, received and will specify a bid closing expresses concern that the grant of this and that do not code share to or from date and time. Eligible carriers may waiver to the Joint Applicants would DCA or LGA with any carrier that has register to purchase the slot bundles via create an incentive for carriers to create five percent or more slot holdings. We e-mail to [email protected]. congestion at other airports that are not also require that, to be eligible to bid on Registration must be received 15 days currently slot-constrained, so as to cause the divested slots, carriers not be prior to the start of the offer period and those airports to become slot- subsidiaries, either partially or wholly must state whether there is any common constrained, and allow those carriers to owned, of a company whose combined ownership or control of, by, or with any benefit from the sale of the newly- slot holdings are equal to or greater than 46 other carrier and certify that no created slots. We do not believe this five percent at DCA or LGA purchase offer information will be concern is well-founded. Carriers that respectively, with the exception of disclosed to any person other than its intentionally over-schedule their Frontier Airlines for the reasons noted agent. operations at an airport incur significant above. The FAA will specify a bid closing costs and delays in their own To enable purchasing carriers to date and time. The bidders’ identities operations. If the FAA is forced to achieve a critical mass of slots, the will not be revealed. An eligible carrier reduce schedules, carriers should not divested slots shall, as proposed, be will register for each slot bundle it expect the FAA to accept any flights bundled into eight slot pairs at each wishes to buy, and the FAA will assign that perpetuate congestion. Moreover, airport, with two such bundles at LGA it a random number for each under the Buy-Sell rule, carriers have and one at DCA. An eligible carrier may, registration, so no information enjoyed the ability to sell slots and under our proposal, purchase only one identifying the bidder will be available retain the sales proceeds at certain slot- slot bundle at each airport (while to the seller or public. A bidder will be controlled airports (and still enjoy that indicating preference ranking for each allowed to indicate its preference ability at DCA), and that has not slot bundle as part of its offer). For the ranking for each slot bundle as part of resulted in any effort by carriers to reasons outlined above, we are not its offer. Finally, the FAA will review create other slot-controlled airports. adopting our earlier proposal to allow the offers for each bundle in order. All Finally, our decision in this case should the seller to opt to accept both bids of offers to purchase slot bundles will be not be viewed as a policy statement or the same purchasing carrier at sent to the FAA electronically, via the rulemaking with far-reaching effect; to LaGuardia. The selling carriers may e-mail address above, by the closing the contrary, it is a waiver based on the retain, in full, the proceeds of the sale date and time. The offer must include specific facts before us and the of these slots. the prospective purchaser’s assigned circumstances are unlikely to be More specifically, as outlined in the number, the monetary amount, and the replicated at other airports. July 2011 Notice, the single bundle at preference ranking for that slot bundle. In addition, Virgin America urges the DCA would include the following slots: No extensions of time will be granted, Department to fulfill its intention to 0700, 0800, 0800, 0900, 1000, 1000, and late offers will not be considered. establish and implement a rule to 1100, 1200, 1300, 1400, 1600, 1700, The FAA will post all offers on the Web manage congestion issues at Newark 1800, 1800, 2000, and 2100. site as soon as practicable after they are Liberty, John F. Kennedy, and At LGA, Bundle A would include received. Each purchaser would be able LaGuardia airports. It also comments slots at 0600D, 0630D, 0730A, 0830D, to submit multiple offers until the that carriers that obtain LaGuardia slots 0830A, 0930D, 1100A, 1230D, 1300A, closing date and time. in this process should be able to seek to 1400D, 1500A, 1600D, 1700A, 1830D, Once the sales period closes, the FAA use those slots at other congested 2000A, and 2100A. Bundle B would will determine the highest offer for each airports (such as Newark Liberty, where consist of slots at 0630D, 0700D, 0800A, bundle. If each bundle receives only a Virgin America asserts that monopoly 0930D, 1000A, 1030D, 1230A, 1330D, single offer, the FAA will notify the conditions exist). While we appreciate 1430A, 1600D, 1630A, 1730D, 1830A, seller by forwarding the purchaser’s these points, they are beyond the scope 1930D, 2030A, and 2130A. identification. If one eligible carrier had of this proceeding. As Virgin America’s Within 30 days of this grant of waiver, made the highest purchase offer on own comments acknowledge, a Delta and US Airways must notify in multiple bundles at LGA, the FAA will comprehensive rule to manage writing to the FAA whether they intend determine which offer is valid based on to proceed with the slot transfer preference ranking. The successful bid 46 Comments of San Francisco Int’l Airport, FAA– for the other LGA bundle will be the 2010–0109 (Aug. 29, 2010); see also Comments of transaction. If they intend to Airports Council Int’l—N. Am., FAA–2010–0109, at consummate the slot transfer transaction next-highest offer from a carrier that 4 (Aug. 30, 2010). subject to this waiver, that notice must remains eligible to purchase the slots.
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This information will be forwarded to operations at the airports. As proposed, Issued in Washington, DC, on October 7, the respective seller. The FAA will however, slots may not be sold or leased 2011. notify the selling and purchasing to other carriers during the 12 months Ray LaHood, carriers to allow them to carry out the following purchase, because the Secretary. transaction, including any gate and purchaser must hold and use the J. Randolph Babbitt, ground facilities arrangements. The full acquired slots. Administrator, Federal Aviation amount of the proceeds may be retained Administration. by the selling carrier. The seller and Purchasers could engage in one-for- purchaser will be required to notify the one trades of these slots for operational Appendix FAA that they have entered into a needs. The limitations would attach to Summary of Comments any slot acquired by an eligible carrier binding agreement with respect to the We received comments from numerous sale of the slots and certify that only in a one-for-one trade. Any one-for-one commenters, which are summarized below. monetary consideration will be or has trades are subject to the FAA notice Southwest Airlines Co. argues that FAA been exchanged for the slots. This requirements in the LGA Order and should require divestitures that are, at a notification must occur within five HDR. Any trades or leases of LGA slots minimum, in-line with DOT’s May, 2010 business days of notification by the FAA may not exceed the duration of the LGA Order, which was 20 slot pairs at LGA and of the winning offer. The FAA then will Order. 14 slot pairs at DCA. Southwest urges FAA to eliminate the possibility of the Joint approve the transaction and will After the initial 12 months, and for Applicants playing a role in the selection maintain and make publicly available a four years thereafter, the slots may be process, to use a true market-based auction record of the offers received, the sold, traded, or leased (as authorized by where the highest cash bid on each slot identity of the seller and purchaser, and the HDR at DCA and as otherwise bundle wins, and to remove the restriction the winning price. that an eligible air carrier may only purchase Additionally, to allow the new entrant authorized at LGA) to any carrier that at one LGA slot bundle. Other options have the and limited incumbent carriers the time of the sale, trade, or lease potential of manipulation in that the seller purchasing the divested slots to would have met the eligibility may have the ability to choose the weakest establish competitive service, we shall requirements to make an offer for the competitor and thereby the ability to act in prohibit each transferee Joint Applicant divested slots under this waiver. These an anti-competitive manner. FAA should also alienation restrictions will increase the amend its order to require that the air carriers from operating any of the slots acquired selling the divested slots should work with by virtue of this waiver during the first likelihood that the divested slots are the respective airport authorities to make 90 days after the closing date of the sale used and operated by carriers that will airport facilities available on no less of the divested slots and from operating enhance competition at LGA and DCA, favorable terms than those now afforded to more than 50 percent of the total lower fares, and benefit the traveling the Joint Applicants and that airport ground number of slots included in the Joint public. We recognize, however, that equipment is made available on reasonable Applicants’ Agreement between the 91st restrictions on alienation of these slots terms. JetBlue Airways Corp. commented on June and the 210th day following the close may depress their value for the carriers date of the sale of the divested slots, 15, 2011, before our Notice on the Joint holding them. Accordingly, the Applicants’ revised Petition was issued, and after which time the transferee will be alienation restrictions on the divested again on August 30, 2011. JetBlue suggests free to operate the remainder of the slots will terminate five years after that the Department structure the auction so slots. initial sale. This will balance the need that the Joint Applicants have no ability to As discussed above and as proposed, and desire of those carriers to maximize select the winning bidders. Further, JetBlue if the purchasing carrier lacks access to argues that the Department should make gates and ground facilities and is unable the value of the divested slots with the minor adjustments to the procedures defined to obtain such access from either the Department’s desire to afford the in its May, 2010 Final order. Specifically, Port Authority, the operator of LGA, or traveling public a broad array of DOT should: (1) Clarify the rights associated from MWAA, the operator of DCA, the competitive service. with the divested slots; (2) auction off the divested slots in pairs rather than bundles; selling carrier must make these available In the unlikely event that there are no (3) limit participation in the auction to ‘‘new to the purchaser under reasonable terms offers for the slots, they will revert entrant and limited incumbents’’ in and rates. We also direct the Joint automatically to the FAA. If necessary, accordance with 49 U.S.C. 41714(h)(5), i.e, Applicants to cooperate fully with the the FAA may retire the slots or generally, to carriers having fewer than 20 purchasing carrier and the respective announce at a later date a means for slots and slot exemptions at the respective airports to enable the startup operations disposing of a slot bundle that attracts airport; and (4) limit participants in the to begin within six months after auction to purchasing two slot pairs in the no purchase offer. We do not expect that first round of bidding. purchase. this need will arise. Slots obtained through this procedure Frontier Airlines, Inc. submitted initial will be subject to the same minimum The grant of waiver becomes effective comments urging the Department to require upon the issuance of this Notice. Failure divestitures consistent with our May, 2010 usage requirements as provided in the Notice, of no less than 28 DCA slots (14 slot LGA Order and HDR. However, we will by the Joint Applicants to comply with pairs) and 40 LGA slots (20 slot pairs). In waive the respective use or lose the terms and conditions contained in order to maximize the number and provisions of the LGA Order and HDR this Notice may result in partial or geographic diversity of LCC’s, Frontier urged for slots operated by the purchaser for complete withdrawal of the waiver or the Department to reallocate the slots in six months following purchase to allow other penalties. bundles of no more than eight slots (or four the purchaser to begin service in new slot pairs) in each bundle. Frontier is markets or add service to existing supportive of the Department’s determination of its eligibility for the auction process, but markets. The purchaser must initiate suggested a few modifications to that process. service no later than six months Specifically, DOT should use a single round following purchase. of bidding and require eligible air carriers to The purchaser may lease the acquired submit their best and final offer, or establish slots to the seller until the purchaser is a multi-bid process with set deadlines for ready to initiate service to maximize each round of bids and require that bidders
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participate in each round of bidding in order establish and implement congestion about the potential loss of nonstop service to to be eligible to participate in the final round mitigation strategy at the major airports in LGA from their community. of bidding. Additionally, FAA should be the and around New York City. Additionally, The Consumer Travel Alliance (‘‘CTA’’) sole entity controlling the selection of the Virgin suggests that the Department modify urges the Department to reexamine the winning bidders. Frontier encourages the its conditions in the following ways: (1) proposed transaction from the taxpayers’ Department to treat Southwest and AirTran Lower the definition of limited incumbent point of view. CTA argues that the slots as one single air carrier for the purpose of the from fewer than five percent; (2) not exempt contemplated in the transaction are not assets auction, and urges the Department to Frontier Airlines from the ‘‘no subsidiaries’’ of the air carriers and should be treated as publicly disclose the winning bidder and requirement; (3) modify the number of property of the American public. CTA has amount of each winning bid. bundles, which are ‘‘unnecessarily’’ large; (4) concerns about the repercussions of Spirit Airlines, Inc. is supportive of the establish a ‘‘strategic slot reserve’’ as detailed incentivizing air carriers by allowing airlines divestment of slots, but urges the Department in its comments in the docket; and (5) allow to reap financial reward in exchange for to modify the transaction process. Spirit air carriers to use the divested slots at other scarce slots. CTA urges the Department to discourages the Department from using an congested New York airports such as Newark reallocate the divested slots to those air auction based approach to reallocate the Liberty International Airport (‘‘EWR’’). carriers that propose to operate large aircraft divested slots, and proposes that FAA Sun Country Airlines urges the Department with those slots, and to air carriers willing to reallocate the slots, without requiring to allow air carriers the ability to purchase invest in equipping their fleet with NextGen compensation, to LCC incumbents that individual slots rather than bundles of slots, technology. Additionally, CTA urges the operate less than five percent of the slots at and proposes that half of the divested slots Department to consider the difficult task of DCA and LGA. Spirit takes the position that should be returned to the Department and reallocating the limited airport facilities to the Joint Applicants have not sought subsequently reallocated to new entrants or the winning bidders. payment and according to 49 U.S.C. 40101(a), limited incumbents through a lottery system US Airways and Delta are prohibited from without charge. Supplemental and Responsive Pleadings selling such slots. Further, Spirit claims that San Francisco International Airport The Joint Applicants submitted responsive the Joint Applicants did not pay for the slots commented to express concerns about (1) the comments in the docket, and assert that they contemplated in the proposed transaction; future use and sale of slots at congested take no issue with JetBlue’s position on the rather, those slots were allocated to the Joint airports, and (2) possible negative subject of the Joint Applicants’ role in the Applicants through AIR–21, and therefore repercussions of allowing air carriers to reap selection of recipients of the divested slots. the Joint Applicants should not reap financial reward from the sale of slots. Furthermore, the Joint Applicants take no financial benefit at the expense of LCCs. The Port Authority of New York and New position with comments regarding Additionally, Spirit claims that it is in the Jersey offered a number of suggestions modifications to the auction process. Delta public’s best interest to distribute the regarding the proposed transaction: (1) and US Airways assert that they did not divested slots without charge, and forcing Certain aspects of the sale mechanism should contemplate divesting the slots without eligible LCCs to purchase the divested slots be changed to increase competition and monetary compensation, and would not have will result in higher fares for passengers. reduce collusive behavior; (2) a six-month offered to divest such slots had they believed Spirit further urges the Department to deadline to commence use of the divested the slots would be withdrawn and group the divested slots into four bundles of slots is unreasonable; and (3) the Department reallocated without compensation. The Joint four slot pairs each at LGA, and four bundles should not allow any of the divested slots to Applicants claim they have the authority to of two slot pairs each at DCA. Spirit states be retired in the unlikely event that no air sell slots, and argue that divestiture of 32 that the proposed auction method puts it at carriers assumes control of the divested slots. slots at LGA and 16 slots at DCA is consistent a disadvantage, and that the carriers with the Airport Council International (‘‘ACI–NA’’) with the public interest standard. The Joint ‘‘deepest pockets’’ could acquire all of the discourages the Department from granting the Applicants further argue that Frontier is not available slots. The air carrier claims it is waiver petition. ACI–NA urges the eligible to participate in the auction without 80% smaller than JetBlue and 95% smaller Department to treat the divested slots as special dispensations. than Southwest/AirTran, and urges the property of the community and not assets of Spirit submitted additional comments in Department to adopt the limited incumbent air carriers. ACI–NA contends that the Joint the docket on August 30, 2011, in which it definition proposed in the Department’s Applicants should not be allowed to receive opposes the transaction unless an additional Final Notice of May 2010. payment from the divestment of slots, which four slot pairs are divested. Spirit claims that The Air Carrier Association of America potentially has negative repercussions. 16 slot pairs at LGA will not be an adequate (‘‘ACAA’’) supports Spirit’s proposal to The City of Tallahassee, Florida encourages number of divested slots to counter-balance distribute the divested slots without charge. the Department to move through the the anti-competitive impact of Delta’s newly ACAA urges the Department to impose divestment process as expeditiously as acquired LGA slots. Spirit strongly opposes divestitures of 40 slots at LGA and 28 slots possible. an action process that results in the Joint at DCA, and to allocate those slots to LCCs Dane County Regional Airport (Madison, Applicants receiving monetary compensation with less than five percent of the slots at Wisconsin) is supportive of the transaction, in exchange for the divested slots. Spirit DCA/LGA. ACAA asserts that there has been but is concerned about possible loss of contends that Congress has defined ‘‘limited no change in the level of competition at LGA service. incumbents’’ as air carriers holding fewer or DCA since the Department issued its The New York Travel Advisory Bureau, than 20 slots, and the Department should previous Final Notice of May 2010. and various travel agents and corporate travel adopt this definition. Allegiant Air asserts that it is eligible to managers expressed support for the Joint In its responsive submission, ACAA urges acquire a portion of the LGA slots, and Applicants’ proposed transaction, generally the Department to require more divested slots encourages the Department to re-bundle the citing the potential for greater benefits to the than 16 slot pairs at LGA and 8 slots pairs divested slots into smaller groups. economy of New York, the benefit of at DCA. ACAA argues that the Joint WestJet encourages the Department to improvements proposed for the infrastructure Applicants obtained control of the slots modify the proposed requirements that allow at LaGuardia, and prospects for improved contemplated in the transaction without air carriers to bid on a minimum of eight slot tourism and travel opportunities. payment and therefore should not receive a pairs. Additionally, in the event that LGA The Honorable Jeff Miller, Representative financial windfall from low cost carriers in slots are obtained by carriers proposing of the First District of Florida, expressed exchange for the slots. ACAA encourages the service to Canada, WestJet urges the support for the proposed transaction as Department to promote competition at DCA Department to assist in their obtaining potentially leading to more air transportation and LGA by divesting slots to air carriers that authority to pre-clear passengers through connectivity between Northwest Florida and hold less than five percent of the slots at the U.S. Customs and Border Protection at DCA. respective airports and proposes to use those applicable Canadian airports. Mayor Bowers of Roanoke, Virginia, and slots to operate aircraft with at least 110 Virgin America, Inc. urged the Department various other businesses, educational seats. to mandate a greater number of slots to be institutions, and private citizens in and Frontier Airlines encourages the divested, and encourages the Department to around Roanoke, expressed strong concern Department to define ‘‘limited incumbents’’
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as those air carriers that operate fewer than Airborne Supplemental Navigation Supplemental Navigation Sensors for five percent of the slots at DCA and LGA. Equipment Using the Global Positioning Global Positioning System Equipment Frontier urges the Department to allocate the System (GPS) effective October 21, Using Aircraft-Based Augmentation; an divested slots into smaller bundles than what 2011. TSO cancellation will not affect updated minimum performance was proposed in the Notice of the revised Petition and prohibit an air carrier from production according to an existing TSO standard for GPS sensors not augmented acquiring all of the slots. Additionally, authorization (TSOA). Articles by satellite-based or ground-based Frontier argues that divested LGA slots produced under an existing TSOA can systems (i.e., TSO–C129a Class B and should not be transferable to EWR, and that still be installed according to existing Class C). The FAA has also published exempting Frontier from the ‘‘no airworthiness approvals and two TSOs for GPS augmented by the subsidiaries’’ requirement is fully justified applications for new airworthiness satellite-based augmentation system and in the public interest. approvals will still be processed. (TSO–C145c, Airborne Navigation Southwest submitted responsive comments The effect of the cancelled TSO will Sensors Using the Global Positioning supporting the Department’s definition of result in no new TSO–C129a design or System Augmented by the Satellite- ‘‘limited incumbent’’ in this proceeding, pointing out that any other definition would production approvals. However, we will Based Augmentation System; and, TSO– be inconsistent with the May 2010 Notice accept applications for new TSO–C129a C146c, Stand-Alone Navigation regarding the previous, similar transaction, TSO Authorizations (TSOA) until Equipment Using the Global Positioning and arguing that the proposed definition October 21, 2012 if we know that you System Augmented by the Satellite- ensures that the divested slots are ‘‘put to were working toward a TSO–C129a Based Augmentation System). their best competitive use * * * to produce approval prior to October 21, 2011. TSO–C145c, TSO–C146c, and TSO– the maximum public benefits and partially DATES: C196 incorporate more stringent offset the anticompetitive effects of the slot Comments must be received on or before October 20, 2011. standards and testing requirements that swap.’’ Southwest further argues that this make the GPS equipment more accurate FOR FURTHER INFORMATION CONTACT: Mr. definition is justified in order to ensure that and robust than sensors built to the the transaction is in the public interest. It Kevin Bridges, AIR–130, Federal minimum requirements in TSO–C129a. also claimed that smaller bundles of slots Aviation Administration, 470 L’Enfant Two examples of these improvements would provide only ‘‘weak and diffuse’’ Plaza, Suite 4102, Washington, DC are: (1) A requirement for the receiver to competition by low-fare carriers. Southwest 20024. Telephone (202) 385–4627, fax also supported a simple auction format in properly account for satellite range error (202) 385–4651, e-mail to: which the highest bidder won each bundle of if it is reflected in the User Range [email protected]. slots. Accuracy index (commonly referred to Continental Airlines, Inc. and United Air SUPPLEMENTARY INFORMATION: The FAA as being ‘‘Selective Availability aware’’); Lines, Inc. submitted responsive comments published a Federal Register notice on and, (2) requirements to ensure opposing Virgin America’s suggestion that August 16, 2011 (76 FR 50808) divested LGA slots should be transferable to performance is not degraded due to an EWR. describing our intent to cancel TSO– increasing radio frequency noise In a September 13, 2011 submission, C129a to solicit feedback. We received environment as other satellite systems JetBlue reiterated its position that additional a total of six comments from three become available. slot divestitures are required to ameliorate parties with questions or concerns about Since 2005, there has only been one the anticompetitive effects of the proposed the cancellation. For example, there was application for a TSO–C129a TSOA on transaction. It also continued to argue that a comment to provide a transition a new article. Many manufacturers ‘‘limited incumbent’’ was defined in statute period for applicants working toward a informally indicate they are by the Wendell H. Ford Aviation Investment TSO–C129a approval prior to the transitioning, or planning to transition, and Reform Act for the 21st Century (AIR– their product lines to the new TSOs. 21), and that implementation of AIR–21 is cancellation date. The FAA agreed with the core issue in this proceeding. this comment and has included a Therefore, we believe cancelling TSO– ACAA responded to these comments in a transition period in this notice. Another C129a is an appropriate way to assist September 21, 2011 filing, and restated the comment expressed concern regarding the natural phase-out/upgrade cycle benefits it believes accrue to the public from how an existing TSO–C129a technical given the eventual obsolescence of allowing carriers with more than five percent standard order authorization (TSOA) TSO–C129a equipment and industry’s of the slots at either airport to participate in would be addressed on an article with lack of interest in new TSO–C129a the auction. multiple TSOAs that has a change not designs. [FR Doc. 2011–26465 Filed 10–11–11; 4:15 pm] affecting TSO–C129a. The FAA agrees Issued in Washington, DC, on October 7, BILLING CODE 4910–13–P to address this issue through a policy 2011. revision and/or policy memo. However, Susan J.M. Cabler, none of the parties providing comments Assistant Manager, Aircraft Engineering DEPARTMENT OF TRANSPORTATION expressed an objection to TSO–C129a Division, Aircraft Certification Service. being cancelled or provided reasons to Federal Aviation Administration [FR Doc. 2011–26449 Filed 10–12–11; 8:45 am] not cancel the TSO. BILLING CODE 4910–13–P Technical Standard Order (TSO)– Comments Invited C129a, Airborne Supplemental You are invited to comment on the Navigation Equipment Using the DEPARTMENT OF TRANSPORTATION cancellation of the TSO by submitting Global Positioning System (GPS) written data, views, or arguments to the Surface Transportation Board AGENCY: Federal Aviation above address on or before October 14, [Docket No. FD 35553] Administration (FAA), DOT 2011. The Director, Aircraft Certification ACTION: Notice of cancellation of TSO– Service, will consider all comments Big Spring Rail System, Inc.;Operation C129a, Airborne Supplemental post-marked or received before the TSO Exemption;Transport Handling Navigation Equipment Using the Global cancellation date. Specialists, Inc. Positioning System (GPS). Background Big Spring Rail System, Inc. (BSRS), SUMMARY: This notice announces the On September 21, 2009, the FAA a noncarrier, has filed a verified notice FAA’s cancellation of TSO–C129a, published TSO–C196, Airborne of exemption under 49 CFR 1150.31 to
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operate over approximately 2.07 miles SUMMARY: An open meeting of the Area FOR FURTHER INFORMATION CONTACT: of rail line between mileposts 0.0 and 6 Taxpayer Advocacy Panel will be Janice Spinks at 1–888–912–1227 or 2.07± in Howard County, Tex., owned conducted. The Taxpayer Advocacy 206–220–6098. by the City of Big Spring, Tex. (City). Panel is soliciting public comment, SUPPLEMENTARY INFORMATION: Notice is BSRS will be operating the line for ideas, and suggestions on improving hereby given pursuant to Section Transport Handling Specialists, Inc., a customer service at the Internal Revenue 10(a)(2) of the Federal Advisory nonoperating carrier, which is leasing Service. Committee Act, 5 U.S.C. App. (1988) the line from the City. BSRS states that DATES: The meeting will be held that an open meeting of the Taxpayer it intends to interchange traffic with Wednesday, November 2, 2011. Advocacy Panel Small Business/Self Union Pacific Railroad Company at Employed Correspondence Exam FOR FURTHER INFORMATION CONTACT: milepost 0.0. Practitioner Engagement Project The transaction may be consummated Timothy Shepard at 1–888–912–1227 or 206–220–6095. Committee will be held Wednesday, on or after October 27, 2011 (30 days November 23, 2011, at 9 a.m. Pacific after the notice of exemption was filed). SUPPLEMENTARY INFORMATION: Notice is Time via telephone conference. The BSRS certifies that its projected hereby given pursuant to Section public is invited to make oral comments annual revenues as a result of this 10(a)(2) of the Federal Advisory or submit written statements for transaction would not exceed those that Committee Act, 5 U.S.C. App. (1988) consideration. Due to limited would qualify it as a Class III rail carrier that an open meeting of the Area 6 conference lines, notifications of intent and further certifies that its projected Taxpayer Advocacy Panel will be held to participate must be made with Ms. annual revenues will not exceed $5 Wednesday, November 2, 2011, at 11 Janice Spinks. For more information million. a.m. Pacific Time via telephone please contact Ms. Spinks at 1–888– If the verified notice contains false or conference. The public is invited to 912–1227 or 206–220–6098, or write misleading information, the exemption make oral comments or submit written TAP Office, 915 2nd Avenue, MS W– is void ab initio. Petitions to revoke the statements for consideration. Due to 406, Seattle, WA 98174 or post exemption under 49 U.S.C. 10502(d) limited conference lines, notification of comments to the Web site: http:// may be filed at any time. The filing of intent to participate must be made with www.improveirs.org. a petition to revoke will not Timothy Shepard. For more information The agenda will include various IRS automatically stay the effectiveness of please contact Mr. Shepard at 1–888– issues. the exemption. Petitions for stay must 912–1227 or 206–220–6095, or write be filed no later than October 20, 2011 TAP Office, 915 2nd Avenue, MS W– Dated: October 6, 2011. (at least 7 days before the exemption 406, Seattle, WA 98174 or post Shawn Collins, becomes effective). comments to the Web site: http:// Director, Taxpayer Advocacy Panel. An original and 10 copies of all www.improveirs.org. [FR Doc. 2011–26405 Filed 10–12–11; 8:45 am] pleadings, referring to Docket No. FD The agenda will include various IRS BILLING CODE 4830–01–P 35553, must be filed with the Surface issues. Transportation Board, 395 E Street, SW., Washington, DC 20423–0001. In Dated: October 6, 2011. DEPARTMENT OF THE TREASURY addition, one copy of each pleading Shawn Collins, must be served on Baxter Wellmon, Director, Taxpayer Advocacy Panel. Internal Revenue Service 1554 Paoli Pike, #179, West Chester, PA [FR Doc. 2011–26404 Filed 10–12–11; 8:45 am] Open Meeting of the Taxpayer 19380. BILLING CODE 4830–01–P Board decisions and notices are Advocacy Panel Taxpayer Assistance available on our Web site at http://www. Center Project Committee stb.dot.gov. DEPARTMENT OF THE TREASURY AGENCY: Internal Revenue Service (IRS) Decided: October 5, 2011. Internal Revenue Service Treasury. By the Board. ACTION: Notice of meeting. Rachel D. Campbell, Open Meeting of the Taxpayer Director, Office of Proceedings. Advocacy Panel Small Business/Self SUMMARY: An open meeting of the Jeffrey Herzig, Employed Correspondence Exam Taxpayer Advocacy Panel Taxpayer Assistance Center Project Committee Clearance Clerk. Practitioner Engagement Project Committee will be conducted. The Taxpayer [FR Doc. 2011–26245 Filed 10–12–11; 8:45 am] Advocacy Panel is soliciting public BILLING CODE 4915–01–P AGENCY: Internal Revenue Service (IRS) comments, ideas, and suggestions on Treasury. improving customer service at the Internal Revenue Service. DEPARTMENT OF THE TREASURY ACTION: Notice of meeting. DATES: The meeting will be held Internal Revenue Service SUMMARY: An open meeting of the Tuesday, November 22, 2011. Taxpayer Advocacy Panel Small FOR FURTHER INFORMATION CONTACT: Open Meeting of the Area 6 Taxpayer Business/Self Employed Ellen Smiley at 1–888–912–1227 or Advocacy Panel (Including the States Correspondence Exam Practitioner 414–231–2360. of Idaho, Iowa, Minnesota, Montana, Engagement Project Committee will be SUPPLEMENTARY INFORMATION: Notice is Nebraska, North Dakota, Oregon, conducted. The Taxpayer Advocacy hereby given pursuant to Section South Dakota, Utah, Washington, and Panel is soliciting public comments, 10(a)(2) of the Federal Advisory Wyoming) ideas, and suggestions on improving Committee Act, 5 U.S.C. App. (1988) customer service at the Internal Revenue that an open meeting of the Taxpayer AGENCY: Internal Revenue Service (IRS) Service. Treasury. Advocacy Panel Taxpayer Assistance DATES: The meeting will be held Center Project Committee will be held ACTION: Notice of meeting. Wednesday, November 23, 2011. Tuesday, November 22, 2011 at 2 p.m.
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Central Time via telephone conference. 406, Seattle, WA 98174 or post DEPARTMENT OF THE TREASURY The public is invited to make oral comments to the Web site: http:// comments or submit written statements www.improveirs.org. Internal Revenue Service for consideration. Due to limited The agenda will include various IRS Open Meeting of the Taxpayer conference lines, notification of intent issues. to participate must be made with Ms. Advocacy Panel Volunteer Income Tax Ellen Smiley. For more information Dated: October 6, 2011. Assistance Project Committee Shawn Collins, please contact Ms. Smiley at 1–888– AGENCY: Internal Revenue Service (IRS) 912–1227 or 414–231–2360, or write Director, Taxpayer Advocacy Panel. Treasury. TAP Office Stop 1006MIL, 211 West [FR Doc. 2011–26407 Filed 10–12–11; 8:45 am] ACTION: Notice of meeting. Wisconsin Avenue, Milwaukee, WI BILLING CODE 4830–01–P 53203–2221, or post comments to the SUMMARY: An open meeting of the Web site: http://www.improveirs.org. Taxpayer Advocacy Panel Volunteer The agenda will include various IRS DEPARTMENT OF THE TREASURY Income Tax Assistance Project issues. Committee will be conducted. The Internal Revenue Service Taxpayer Advocacy Panel is soliciting Dated: October 6, 2011. public comments, ideas, and Shawn Collins, Open Meeting of the Taxpayer suggestions on improving customer Advocacy Panel Earned Income Tax Director, Taxpayer Advocacy Panel. service at the Internal Revenue Service. Credit Project Committee [FR Doc. 2011–26406 Filed 10–12–11; 8:45 am] DATES: The meeting will be held BILLING CODE 4830–01–P AGENCY: Internal Revenue Service (IRS) Tuesday, November 08, 2011. Treasury. FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF THE TREASURY Donna Powers at 1–888–912–1227 or ACTION: Notice of meeting. 954–423–7977. Internal Revenue Service SUPPLEMENTARY INFORMATION: Notice is SUMMARY: An open meeting of the hereby given pursuant to Section Open Meeting of the Taxpayer Taxpayer Advocacy Panel Earned 10(a)(2) of the Federal Advisory Advocacy Panel Small Business/Self Income Tax Credit Project Committee Committee Act, 5 U.S.C. App. (1988) Employed Correspondence Exam Toll will be conducted. The Taxpayer that a meeting of the Taxpayer Free Project Committee Advocacy Panel is soliciting public Advocacy Panel Volunteer Income Tax comments, ideas and suggestions on Assistance Project Committee will be AGENCY: Internal Revenue Service (IRS) improving customer service at the held Tuesday, November 08, 2011, 2 Treasury. Internal Revenue Service. p.m. Eastern Time via telephone ACTION: Notice of meeting. DATES: The meeting will be held conference. The public is invited to make oral comments or submit written SUMMARY: Monday, November, 28, 2011. An open meeting of the statements for consideration. Due to Taxpayer Advocacy Panel Small FOR FURTHER INFORMATION CONTACT: limited conference lines, notification of Business/Self Employed Marianne Dominguez at 1–888–912– intent to participate must be made with Correspondence Exam Toll Free Project 1227 or 954–423–7978. Donna Powers. For more information Committee will be conducted. The SUPPLEMENTARY INFORMATION: Notice is please contact Ms. Powers at 1–888– Taxpayer Advocacy Panel is soliciting 912–1227 or 954–423–7977, or write public comments, ideas, and hereby given pursuant to Section 10(a)(2) of the Federal Advisory TAP Office, 1000 South Pine Island suggestions on improving customer Road, Suite 340, Plantation, FL 33324, service at the Internal Revenue Service. Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer or contact us at the Web site: http:// DATES: The meeting will be held Advocacy Panel Earned Income Tax www.improveirs.org. Monday, November 21, 2011. Credit Project Committee will be held The agenda will include various IRS FOR FURTHER INFORMATION CONTACT: Monday, November 28, 2011, at 3 p.m. issues. Timothy Shepard at 1–888–912–1227 or Eastern Time via telephone conference. Dated: October 6, 2011. 206–220–6095. The public is invited to make oral Shawn Collins, SUPPLEMENTARY INFORMATION: Notice is comments or submit written statements Director, Taxpayer Advocacy Panel. hereby given pursuant to Section for consideration. Due to limited [FR Doc. 2011–26395 Filed 10–12–11; 8:45 am] 10(a)(2) of the Federal Advisory conference lines, notification of intent BILLING CODE 4830–01–P Committee Act, 5 U.S.C. App. (1988) to participate must be made with that an open meeting of the Taxpayer Marianne Dominguez. For more Advocacy Panel Small Business/Self information please contact Ms. DEPARTMENT OF THE TREASURY Employed Correspondence Exam Toll Dominguez at 1–888–912–1227 or 954– Free Project Committee will be held 423–7978, or write TAP Office, 1000 Internal Revenue Service Monday, November 21, 2011, at 9 a.m. South Pine Island Road, Suite 340, Pacific Time via teleconference. The Plantation, FL 33324, or contact us at Open Meeting of the Area 7 Taxpayer public is invited to make oral comments the Web site: http://www.improveirs.org. Advocacy Panel (Including the States or submit written statements for of Alaska, California, Hawaii, and The agenda will include various IRS Nevada) consideration. Due to limited issues. conference lines, notification of intent Dated: October 6, 2011. AGENCY: Internal Revenue Service (IRS) to participate must be made with Treasury. Shawn Collins, Timothy Shepard. For more information ACTION: Notice of meeting. please contact Mr. Shepard at 1–888– Director, Taxpayer Advocacy Panel. 912–1227 or 206–220–6095, or write [FR Doc. 2011–26394 Filed 10–12–11; 8:45 am] SUMMARY: An open meeting of the Area TAP Office, 915 2nd Avenue, MS W– BILLING CODE 4830–01–P 7 Taxpayer Advocacy Panel will be
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conducted. The Taxpayer Advocacy Committee Act, 5 U.S.C. App. (1988) Moines, IA 50309 or contact us at the Panel is soliciting public comments, that an open meeting of the Taxpayer Web site: http://www.improveirs.org. ideas, and suggestions on improving Advocacy Panel Notice Improvement The agenda will include various IRS customer service at the Internal Revenue Project Committee will be held issues. Service. Thursday, November 3, 2011 2 p.m. Dated: October 6, 2011. DATES: Eastern Time via telephone conference. The meeting will be held Shawn Collins, Thursday, November 17, 2011. The public is invited to make oral Director, Taxpayer Advocacy Panel. FOR FURTHER INFORMATION CONTACT: comments or submit written statements [FR Doc. 2011–26409 Filed 10–12–11; 8:45 am] Janice Spinks at 1–888–912–1227 or for consideration. Due to limited 206–220–6098. conference lines, notification of intent BILLING CODE 4830–01–P SUPPLEMENTARY INFORMATION: Notice is to participate must be made with Ms. Jenkins. For more information please hereby given pursuant to Section DEPARTMENT OF THE TREASURY 10(a)(2) of the Federal Advisory contact Ms. Jenkins at 1–888–912–1227 Committee Act, 5 U.S.C. App. (1988) or 718–488–2085, or write TAP Office, Internal Revenue Service that a meeting of the Area 7 Taxpayer 10 MetroTech Center, 625 Fulton Street, Advocacy Panel will be held Thursday, Brooklyn, NY 11201, or post comments Open Meeting of the Taxpayer November 17, 2011, at 2 p.m. Pacific to the Web site: http:// Advocacy Panel Tax Forms and Time via telephone conference. The www.improveirs.org. Publications Project Committee public is invited to make oral comments The agenda will include various IRS or submit written statements for issues. AGENCY: Internal Revenue Service (IRS), consideration. Due to limited Dated: October 6, 2011. Treasury. conference lines, notification of intent Shawn Collins, ACTION: Notice of meeting. to participate must be made with Janice Director, Taxpayer Advocacy Panel. SUMMARY: Spinks. For more information please [FR Doc. 2011–26408 Filed 10–12–11; 8:45 am] An open meeting of the Taxpayer Advocacy Panel Tax Forms contact Ms. Spinks at 1–888–912–1227 BILLING CODE 4830–01–P or 206–220–6098, or write TAP Office, and Publications Project Committee will 915 2nd Avenue, MS W–406, Seattle, be conducted. The Taxpayer Advocacy WA 98174 or post comments to the Web DEPARTMENT OF THE TREASURY Panel is soliciting public comments, site: http://www.improveirs.org. ideas and suggestions on improving The agenda will include various IRS Internal Revenue Service customer service at the Internal Revenue issues. Service. Open Meeting of the Taxpayer Dated: October 6, 2011. DATES: The meeting will be held Advocacy Panel Joint Committee Shawn Collins, Tuesday, November 8, 2011. Director, Taxpayer Advocacy Panel. AGENCY: Internal Revenue Service (IRS) FOR FURTHER INFORMATION CONTACT: [FR Doc. 2011–26393 Filed 10–12–11; 8:45 am] Treasury. Marisa Knispel at 1–888–912–1227 or BILLING CODE 4830–01–P ACTION: Notice of meeting. 718–488–3557.
SUMMARY: An open meeting of the SUPPLEMENTARY INFORMATION: Notice is hereby given pursuant to section DEPARTMENT OF THE TREASURY Taxpayer Advocacy Panel Joint Committee will be conducted. The 10(a)(2) of the Federal Advisory Internal Revenue Service Taxpayer Advocacy Panel is soliciting Committee Act, 5 U.S.C. App. (1988) public comments, ideas, and that an open meeting of the Taxpayer Open Meeting of Taxpayer Advocacy suggestions on improving customer Advocacy Panel Tax Forms and Panel Notice Improvement Project service at the Internal Revenue Service. Publications Project Committee will be held Tuesday, November 8, 2011, at 2 Committee DATES: The meeting will be held p.m. Eastern Time via telephone Wednesday, November 23, 2011. AGENCY: Internal Revenue Service (IRS), conference. The public is invited to Treasury. FOR FURTHER INFORMATION CONTACT: make oral comments or submit written ACTION: Notice of meeting. Susan Gilbert at 1–888–912–1227 or statements for consideration. Due to (515) 564–6638. limited conference lines, notification of SUMMARY: An open meeting of the SUPPLEMENTARY INFORMATION: Notice is intent to participate must be made with Taxpayer Advocacy Panel Notice hereby given pursuant to Section Ms. Knispel. For more information Improvement Project Committee will be 10(a)(2) of the Federal Advisory please contact Ms. Knispel at 1–888– conducted. The Taxpayer Advocacy Committee Act, 5 U.S.C. App. (1988) 912–1227 or 718–488–3557, or write Panel is soliciting public comments, that an open meeting of the Taxpayer TAP Office, 10 MetroTech Center, 625 ideas and suggestions on improving Advocacy Panel Joint Committee will be Fulton Street, Brooklyn, NY 11201, or customer service at the Internal Revenue held Wednesday, November 23, 2011, 2 post comments to the Web site: http:// Service. p.m. Eastern Time via teleconference. www.improveirs.org. DATES: The meeting will be held The public is invited to make oral The agenda will include various IRS Thursday, November 3, 2011. comments or submit written statements issues. FOR FURTHER INFORMATION CONTACT: for consideration. Notification of intent Audrey Y. Jenkins at 1–888–912–1227 to participate must be made with Susan Dated: October 6, 2011. or 718–488–2085. Gilbert. For more information please Shawn Collins, SUPPLEMENTARY INFORMATION: Notice is contact Ms. Gilbert at 1–888–912–1227 Director, Taxpayer Advocacy Panel. hereby given pursuant to section or (515) 564–6638 or write: TAP Office, [FR Doc. 2011–26410 Filed 10–12–11; 8:45 am] 10(a)(2) of the Federal Advisory 210 Walnut Street, Stop 5115, Des BILLING CODE 4830–01–P
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Part II
Department of the Interior
Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List a Distinct Population Segment of the Red Tree Vole as Endangered or Threatened; Proposed Rule
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DEPARTMENT OF THE INTERIOR and Wildlife Service, Oregon Fish and sent a letter to Noah Greenwald, Center Wildlife Office, 2600 S.E. 98th Ave., for Biological Diversity, acknowledging Fish and Wildlife Service Suite 100, Portland, OR 97266; our receipt of the petition and providing telephone 503–231–6179; facsimile our determination that emergency 50 CFR Part 17 503–231–6195. Please submit any new listing was not warranted for the species [Docket No. FWS–R1–ES–2008–0086; information, materials, comments, or at that time. 92210–5008–3922–10–B2] questions concerning this finding to the On October 28, 2008, we published a above street address. 90-day finding for the dusky tree vole in Endangered and Threatened Wildlife FOR FURTHER INFORMATION CONTACT: Paul the Federal Register (73 FR 63919). We and Plants; 12-Month Finding on a Henson, Ph.D., Field Supervisor, U.S. found that the petition presented Petition To List a Distinct Population Fish and Wildlife Service, Oregon Fish substantial information indicating that Segment of the Red Tree Vole as and Wildlife Office (see ADDRESSES listing one of the following three entities Endangered or Threatened section). If you use a as endangered or threatened may be telecommunications device for the deaf warranted: AGENCY: Fish and Wildlife Service, (1) The dusky tree vole subspecies of (TDD), call the Federal Information Interior. the red tree vole; ACTION: Notice of 12-month petition Relay Service (FIRS) at 800–877–8339. (2) The North Oregon Coast DPS of finding. SUPPLEMENTARY INFORMATION: the red tree vole; or Background (3) The red tree vole because it is SUMMARY: We, the U.S. Fish and endangered or threatened in a Wildlife Service (Service), announce a Section 4(b)(3)(B) of the Endangered significant portion of its range. 12-month finding on a petition to list a Species Act (Act) (16 U.S.C. 1531 et As a result of that finding, we also distinct population segment of the red seq.) requires that, for any petition to initiated a status review of the species, tree vole (Arborimus longicaudus) as revise the Federal Lists of Endangered including an evaluation of the North endangered or threatened and to and Threatened Wildlife and Plants that Oregon Coast population of red tree vole designate critical habitat under the contains substantial scientific and and the red tree vole throughout its Endangered Species Act of 1973, as commercial information indicating that range. This notice constitutes our 12- amended (Act). The Petition provided listing may be warranted, we make a month finding for the petition to list the three listing options for the Service to finding within 12 months of the date of dusky tree vole as endangered or consider: Listing the dusky tree vole receipt of the petition on whether the threatened. subspecies throughout its range; listing petitioned action is: (1) Not warranted; the North Oregon Coast population of (2) warranted; or (3) warranted, but the Species Information the red tree vole (Arborimus immediate proposal of a regulation As a putative subspecies, the dusky longicaudus) as a distinct population implementing the petitioned action is tree vole is a member of the red tree vole segment (DPS); or listing the red tree precluded by other pending proposals to taxon. Some of the scientific literature is vole because it is endangered or determine whether species are specific to the ‘‘dusky tree vole,’’ but threatened in a significant portion of its endangered or threatened, and much of it describes the red tree vole range. expeditious progress is being made to and does not distinguish among After review of the best available add or remove qualified species from subspecies. For that reason, available scientific and commercial information, the Federal Lists of Endangered and information on the red tree vole is we have determined that listing the Threatened Wildlife and Plants. Section presented below with the assumption North Oregon Coast population of the 4(b)(3)(C) of the Act requires that we that it also applies to the dusky tree red tree vole as a DPS is warranted. treat a petition for which the requested vole. If the information source makes However, the development of a action is found to be warranted but distinctions between the two, they are proposed listing rule is precluded by precluded as though resubmitted on the noted, as appropriate. Published higher priority actions to amend the date of such finding; that is, requiring a literature on the red tree vole also Lists of Endangered and Threatened subsequent finding to be made within includes work conducted on the closely Wildlife and Plants. Upon publication 12 months. We must publish these 12- related Sonoma tree vole (Arborimus of this 12-month petition finding, we month findings in the Federal Register. pomo). Prior to 1991, these taxa were will add this DPS of the red tree vole to both considered red tree vole (Johnson Previous Federal Actions our candidate species list. We will and George 1991, entire). Where develop a proposed rule to list this DPS On June 22, 2007, we received a pertinent information is lacking or of the red tree vole as our priorities petition dated June 18, 2007, from the limited for the red tree vole, information allow. We will make any determination Center for Biological Diversity and six on the Sonoma tree vole is presented on critical habitat during development other organizations and individuals because there have been no ecological or of the proposed listing rule. In any (hereafter, ‘‘the petitioners’’), requesting life-history differences noted for the two interim period, we will address the that we list the dusky tree vole as an species (Smith et al. 2003, p. 187). status of the candidate taxon through endangered or threatened species and Tree voles are small, mouse-sized our annual Candidate Notice of Review designate critical habitat. The rodents that live in conifer forests and (CNOR). petitioners requested that if we found spend almost all of their time in the tree DATES: This finding was made on the dusky tree vole was not a listable canopy. Tree voles rarely come to the October 13, 2011. entity as a subspecies, we either list the ground, and do so only to move briefly ADDRESSES: This finding is available on North Oregon Coast population of the between trees. They are one of the few the Internet at http:// red tree vole as a distinct population animals to persist on a diet of conifer www.regulations.gov. Supporting segment (DPS), or list the red tree vole needles, which is their principal food. documentation we used in preparing because it is endangered or threatened When eating, tree voles strip away the this finding is available for public in a significant portion of its range, resin ducts within conifer needles and inspection, by appointment, during including the North Oregon Coast eat the remaining portion; resin ducts normal business hours at the U.S. Fish population. On September 26, 2007, we contain terpenoid chemicals that make
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them unpalatable to most species. Red found in Tillamook County and Cascade Range to the east (Miller et al. tree voles live singly (or with young, in originally classified as a distinct 2006a, Fig.1, pp. 146, 151–152). the case of females) in nests made of species, P. silvicolus (Howell 1921, Although Miller et al. (2006a, entire) vegetation and other materials. Swingle entire), later renamed P. silvicola (Miller found genetic discontinuities in the red (2005, p. 2) summarized the sizes of red 1924, p. 400). Taylor (1915, p. 156) tree vole in Oregon, the authors did not tree vole nests as ranging from ‘‘very established the subgenus Arborimus for comment on the taxonomic status of the small ephemeral structures about the tree voles, which Johnson (1968, p. 27; species. Subsequent conversations with size of a grapefruit, to large old maternal 1973, p. 243) later proposed elevating to the geneticists who authored this paper nests that may be nearly as large as a full generic rank, although this genus indicated that the genetic differences bushel basket and completely encircle has not been universally adopted (e.g., described in Miller et al. (2006a, entire) the trunk of the tree (Taylor 1915; Verts and Carraway 1998, pp. 309–311). were substantial enough to potentially Howell 1926; Verts and Carraway For the purpose of this finding, we use warrant taxonomically classifying the 1998).’’ Nests of females tend to be the generic classification, Arborimus, three genetically distinct groups as larger than those of males. Males and adopted by the petitioners. separate subspecies if there were Johnson (1968, p. 27) concluded that females live separate lives once leaving corresponding differences in other analysis of blood proteins and the nest, only coming together to breed. traits, such as behavior or morphology, Further details of the life-history hemoglobin from dusky and red tree voles ‘‘* * * suggested combining the to provide additional support (Miller characteristics of tree voles are and Haig 2009, pers. comm.). Recent presented below. named forms of Arborimus into a single species * * *’’. Hall (1981, p. 788) cited review of external morphological Taxonomy and Description Johnson (1968, p. 27) as suggesting a characters by Miller et al. (2010, entire) did not distinguish dusky tree voles Tree voles are less than 8.2 inches (in) ‘‘subspecific relationship of the two from red tree voles, but the authors (209 millimeters (mm)) long and weigh taxa,’’ and others have cited Johnson as noted that additional analysis of other up to 1.7 ounces (oz) (49 grams (g)) well in supporting the classification of physical characteristics (e.g., fur color) (Hayes 1996, p. 1; Verts and Carraway the dusky tree vole as a subspecies (e.g., would be required to better determine 1998, p. 301; Forsman 2010, pers. Maser and Storm 1970, p. 64; Johnson the dusky tree vole’s taxonomic status. comm.). Pelage (fur) color ranges from and George 1991, p. 1). However, based The Integrated Taxonomic Information brownish red to bright brownish-red or on a lack of detectable genetic System (ITIS), a database maintained by orange-red (Maser et al. 1981, p. 201). differences and a lack of consistently a partnership of U.S., Canadian, and The darker coat color has been verifiable morphological differences Mexican agencies, other organizations, attributed to the dusky tree vole (Bailey between dusky and red tree voles, and taxonomic specialists to provide 1936, p. 198; Maser et al. 1981, p. 201). Bellinger et al. (2005, p. 207) suggested scientifically credible taxonomic Melanistic (all black) forms of the dusky subspecific status of the dusky tree vole information, does not recognize the (Hayes 1996, p. 1) and red tree vole may not be warranted. dusky tree vole as a subspecies of the (Swingle 2005, p. 46), as well as cream- Miller et al. (2006a, entire) analyzed red tree vole (information retrieved 15 colored red tree voles (Swingle 2005, p. mitochondrial DNA sequences from red March 2011, from the ITIS database). 82), rarely occur. tree voles throughout their range in Howell (1926, p. 35) described several Oregon. This study was not designed to Wilson and Reeder (2005, entire) is the physical differences between voles address red tree vole taxonomy, but industry standard for mammalian described as dusky tree voles and red rather, how historical processes may taxonomy. Subspecies were not tree voles. These differences include have affected the genetic diversity and recognized until the most recent edition, coat color, as well as skull and dental structure of the red tree vole across published in 2005. Although Wilson characteristics. However, Howell (1926, much of its range. The authors found and Reeder (2005, pp. 962–963) p. 34) based his description of the red significant genetic discontinuities based recognize the dusky tree vole as a tree vole on the observations of 40 tree on unique haplotypes that result in subspecies, the more recent research on voles, 32 of which were from California. three genetically distinct groupings of tree vole genetics and analyses At least 28 of the California tree voles red tree voles. A primary discontinuity attempting to clarify the taxonomic were collected from Carlotta, Humboldt divided the red tree vole’s range into a status of the dusky tree vole have only County, within the range of what is now northern and a southern region in terms become available subsequent to that considered the Sonoma tree vole of genetic makeup as determined from review, and therefore were not (Howell 1926, p. 41; Blois and Arbogast mitochondrial DNA. Some overlap of considered at the time that volume was 2006, pp. 953–956). Howell’s these two genetic groups occurred, but published. description of the red tree vole was in general, red tree voles north of Range and Distribution therefore based on a collection that was Douglas and southeastern Lane Counties actually comprised primarily of Sonoma were genetically different from tree Tree voles are endemic to the humid, tree voles, rendering the comparison to voles to the south (Miller et al. 2006a, coniferous forests of western Oregon dusky tree voles of questionable value. Fig.1, pp. 146, 151–152). There are no and northwestern California (Maser The taxonomic history of red and known geographic or geological features 1966, p. 7). The red tree vole occurs in dusky tree voles is complex; a that coincide with this genetic western Oregon from below the crest of comprehensive description can be discontinuity that might explain this the Cascade Range to the Pacific coast found in Miller et al. (2010, pp. 64–65). genetic break. The northern genetic (Hayes 1996, p. 2; Verts and Carraway The red tree vole was first described group was further subdivided by a 1998, pp. 309–310), with a geographic from a specimen collected in Coos secondary discontinuity that coincided range covering approximately 16.3 County, Oregon (True 1890, pp. 303– with the Willamette Valley, a non- million acres (ac) (6.6 million hectares 304), and originally placed in the genus forested barrier currently separating (ha)) across multiple ownerships (USDA Phenacomys. The dusky tree vole was individuals in the northern Oregon and USDI 2007, p. 287) (Figure 1). first described from a dead specimen Coast Range to the west from the BILLING CODE 4310–55–P
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BILLING CODE 4310–55–C the boundary between the two species northern limit of its historical The southern boundary of the range of to be the Klamath River in northwestern distribution in northwestern Oregon is the red tree vole borders the range of the California. A recent mitochondrial DNA unclear. Within the Oregon Coast Range, Sonoma tree vole, which Johnson and analysis supports the classification of the northernmost tree vole collection George (1991, p. 12) classified as a tree voles in northwestern California site was in the vicinity of Saddle separate species from the red tree vole. (Del Norte County) as Arborimus Mountain in central Clatsop County Johnson and George (1991, pp. 11–12) longicaudus (Blois and Arbogast 2006, (Verts and Carraway 1998, pp. 310, 546; suggested the break between the ranges pp. 956, 958). Forsman and Swingle 2009, pers. of these two species was the Klamath The red tree vole has not been found comm.). Although no tree voles have Mountains along the Oregon-California north of the Columbia River (Verts and been detected in recent search efforts in border. Murray (1995, p. 26) considered Carraway 1998, p. 309), but the actual northern Clatsop and Columbia
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Counties (Forsman and Swingle 2009, pp. 297–298; USDA and USDI 2007, p. Swingle and Forsman 2009, entire). Of unpublished data), the area historically 289). 45 radio-collared red tree voles, 18 had had extensive forests with large Red tree voles are generally restricted home ranges consisting of their nest tree Douglas-fir (Pseudotsuga menziesii) and to lower elevation coniferous forests, and a few adjacent trees, whereas the western hemlock (Tsuga heterophylla) although there are a few records of this remainder occupied up to 6 different trees conducive to tree vole habitat species above 4,265 feet (ft) (1,300 nests spaced up to 532 ft (162 m) apart (Robbins 1997, pp. 205–206). Therefore, meters (m)) (Manning and Maguire in different trees (Swingle and Forsman we believe it is reasonable to assume 1999, entire; Forsman et al. 2004, p. 2009, p. 277). Mean and median home that tree voles were present in those 300). Hamilton (1962, p. 503) suggested ranges were 0.43 ac (0.17 ha) and 0.19 areas prior to the late 1800s and early red tree voles may be limited to lower ac (0.08 ha), respectively (Swingle and 1900s when virtually all old forests in elevations because their nests do not Forsman 2009, p. 278). Home range the region were clear-cut or burned. The provide adequate insulation during sizes did not differ among gender, age, Columbia River was considered winter. Because tree voles are active or among voles occurring in young (22– Oregon’s most productive logging center throughout the year, it is also possible 55 years old) versus old (110–260 years in the late 1800s (Robbins 1997, p. 220), they are absent from high-elevation old) forests (Swingle and Forsman 2009, and it is likely that virtually all of the areas because they find it difficult to pp. 277–279). An unpublished study suitable tree vole habitat in Clatsop, forage on limbs covered with snow and conducted by Brian Biswell and Chuck Columbia, and Washington Counties ice during winter (Forsman et al. 2004, Meslow found mean male home ranges was removed before tree vole p. 300). of 0.86 ac (0.35 ha) and mean female occurrence could be recorded. Whether The range of the putative dusky tree home ranges of 0.37 ac (0.15 ha) tree voles may persist undetected in vole is less clear than that of the red tree (Biswell and Meslow, unpublished data Columbia County and northern Clatsop vole. Johnson and George (1991, p. 12) referenced in USDA and USDI 2000b, p. County is not known at this time; described its range as restricted to the 8). Dispersal distances of nine subadults although not detected in the most recent western slope of the Coast Range in ranged from 10 to 246 ft (3 to 75 m) search efforts, tree voles may be Tillamook and Lincoln Counties. (Swingle 2005, p. 63). The longest overlooked if they are sparsely However, Maser (1966, p. 16) known straight-line dispersal distance distributed or few in number. summarized collection and nest records was for a subadult male who traveled for the dusky tree vole from locations Farther east, the red tree vole occurs 1,115 ft (340 m) over the course of 40 east of the crest of the Coast Range in the Columbia River Gorge from days (Biswell and Meslow, unpublished down to the western edge of the Wahkenna Creek to Seneca Fouts State data referenced in USDA and USDI Willamette Valley in Washington, 2000b, p. 8). Park, 4 miles (mi) (6 kilometers (km)) Yamhill, Polk, Benton, and Lane west of Hood River (Forsman et al. Counties. Maser (2009, pers. comm.) Habitat 2009b, p. 230). The red tree vole range believed the southern limit of the dusky Red tree voles are found exclusively had been described as west of the crest tree vole to be in the vicinity of the in conifer forests or in mixed forests of of the Cascade Range in Oregon (Corn Smith or Umpqua Rivers (western conifers and hardwoods (Hayes 1996, p. and Bury 1986, p. 405). However, recent Douglas County) based on a shift in vole 3). Throughout most of their range, they surveys have also found them just east behavior and habitat type. Brown (1964, are principally associated with Douglas- of the Cascade Range crest, in the p. 648) mentioned four dusky tree vole fir for foraging and nesting (Jewett 1920, headwaters of the Lake Branch of Hood museum specimens collected near p. 165; Bailey 1936, p. 195). However, River, 19 mi (30 km) southwest of the Molalla in Clackamas County east of the their nests have also been documented town of Hood River (Forsman et al. Willamette Valley. Howell (1926, p. 34) in Sitka spruce (Picea sitchensis) (Jewett 2009b, p. 227). referred to Stanley Jewett, a fellow 1920, p. 165), grand fir (Abies grandis), Surveys conducted for red tree voles naturalist, finding ‘‘unmistakable western hemlock, Pacific yew (Taxus by the Forest Service and the Bureau of evidence’’ of red tree voles in old nests brevifolia), and non-conifers such as Land Management as part of the Survey near Bonneville, in far eastern bigleaf maple (Acer macrophyllum) and and Manage program under the Multnomah County at the foot of the golden chinquapin (Castanopsis Northwest Forest Plan (NWFP) have Cascade Range, and then goes on to say, chrysophylla) (Swingle 2005, p. 31). provided additional information on the ‘‘Though this sign may possibly have Hardwoods are generally not recognized distribution of the red tree vole (USDA been of longicaudus, it is considered as an important habitat component and USDI 2007, p. 289). These surveys more likely to have been of silvicola.’’ (USDA and USDI 2002, p. 1). Tree vole indicate red tree voles are uncommon However, he did not elaborate on why nests are located in the forest canopy and sparsely distributed in much of the he concluded that it was indicative of and are constructed from twigs and northern Coast Range and northern the dusky tree vole. Maser (1966, p. 8) resin ducts discarded from feeding, as Cascade Range of Oregon. Forsman et al. observed that tree voles historically well as fecal pellets, lichens, dead twigs, (2004, p. 300) reached the same collected north of Eugene and west of and conifer needles (Howell 1926, p. 46; conclusion based on remains of red tree the Willamette Valley were typically Clifton 1960, pp. 53–60; Maser 1966, pp. voles in pellets of northern spotted owls classified as dusky tree voles, while 94–96; Gillesberg and Carey 1991, p. (Strix occidentalis caurina), although those collected north of Eugene and east 785; Forsman et al. 2009a, p. 266). On data were sparse from the northern of the Willamette Valley were almost all the occasions when tree voles nest in Oregon Coast Range compared to the identified as red tree voles. non-conifers or snags, they are virtually rest of the red tree vole’s range. Based always in trees that have limbs on these surveys and data from owl Home Range and Dispersal interconnected with adjacent live pellets, the eastern limit of red tree vole The only published data on home conifers where the voles can obtain food distribution in southwestern Oregon range sizes and dispersal come from red (Maser 1966, p. 78; Swingle 2005, p. 31). appears to include forested areas in tree voles radio-collared in the southern Within the northern Oregon Coast Josephine County and a narrow band Coast Range and southern Cascades of Range, primarily in the Sitka spruce along the western and northern edges of Douglas County in southwestern Oregon plant series (see Distinct Vertebrate Jackson County (Forsman et al. 2004, (Swingle 2005, pp. 51–63, 84–89; Population Segment Analysis for plant
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series description), tree vole diet and required to sustain populations of the growth trees may be optimum tree vole nest tree species selection favors red tree vole over the long term. habitat because primary production is western hemlock and Sitka spruce There is no single description of red high and needles are concentrated, (Walker 1930, pp. 233–234; Forsman et tree vole habitat and a wide variety of providing maximum food availability al. 2008, Table 2; Forsman and Swingle terms have been used to describe the (Carey 1991, p. 8). In addition, old- 2009, pers. comm.; Maser 2009, pers. older forest stands the tree voles tend to growth canopy buffers weather changes comm.), although some vole nests have select (e.g., late-successional, old- and has high water-holding capacity, been found in Douglas-fir in this plant growth, large conifer, mature, providing fresh foliage and a water series (Howell 1921, p. 99; Jewett 1930, structurally complex). Where these source (Gillesberg and Carey 1991, pp. pp. 81–83; Forsman and Swingle 2009, terms appear in cited literature, or 786–787), as well as numerous cavities pers. comm.). where specific ages are referred to, we and large limbs that provide stable nest Based on their study of small mammal refer to them in this analysis. Otherwise, substrates. habitat associations in the Oregon Coast we use the term ‘‘older forest’’ when As noted above, tree voles can be Range, Martin and McComb (2002, p. collectively referring to these stand found in younger forests, sometimes at 262) considered red tree voles to be conditions. In using the term ‘‘older fairly high densities (Howell 1926, pp. habitat specialists. In that study of forest,’’ we are not implying a specific 41–45: Maser 1966, pp. 216–217; forests of different patch types, red tree stand age that represents tree vole Thompson and Diller 2002, p. 95). It is voles selected ‘‘conifer large sawtimber habitat. Rather, we use the term to not understood how younger forests patch types’’ and landscapes that represent the mixture of old and large influence the abundance, persistence, or minimize fragmentation of mature trees, multiple canopy layers, snags and dispersal of red tree voles. Carey (1991, conifer forest (Martin and McComb other decay elements, understory p. 34) suggested younger forests were 2002, pp. 259, 261, 262). The vegetation development and biologically complex population sinks for red tree voles. classification scheme used by Martin structure and composition often found Based on surveys in young forests (22– and McComb (2002, p. 257) defines the in forests selected by tree voles. 55 years old) and observations of radio- The most extensive and intensive conifer large sawtimber patch type as collared tree voles, Swingle (2005, pp. analysis of red tree vole habitat forest patches with greater than 70 78, 94) and Swingle and Forsman (2009, associations on Federal lands percent conifer composition, more than pp. 283–284) concluded that some throughout the vole’s range found a 20 percent canopy cover, and mean young forests may be important habitat strong association between tree vole for tree voles, particularly in landscapes diameter at breast height (dbh) of greater nest presence and late-successional and where old forests have largely been than 21 in (53.3 cm) (it should be noted old-growth forest conditions (forests eliminated or currently exist in isolated that studies where researchers actually over 80 years old), with optimal red tree patches. However, Swingle (2005, pp. measured the canopy cover of stands vole habitat being especially rare (Dunk 78, 94) cautioned against using the used by red tree voles indicate the and Hawley 2009, p. 632). Throughout occasional presence of tree voles in minimum canopy cover requirements of their range on Federal land, the young forests to refute the importance of red tree voles are much higher, on the probability of red tree vole nest old forest habitats to tree voles. Young order of 53 to 66 percent (e.g., Swingle presence (Po) in the highest quality forest stands may serve as interim 2005, p. 39)). Red tree voles were most habitat (forest exhibiting late- habitat for tree voles and may provide abundant in contiguous mature conifer successional structural characteristics) connectivity between remnant patches forest (unfragmented landscapes), and was 7 times more than expected based of older forest, but whether younger were negatively affected by increasing on the proportional availability of that forests are capable of supporting viable patch densities at the landscape scale habitat, whereas in lowest quality, early- populations of tree voles over the long (Martin and McComb 2002, p. 262). seral forest conditions, Po was 7.6 times term is uncertain. The limited evidence Although red and Sonoma tree voles less than expected based on availability available suggests that tree vole occur and nest in young forests (Jewett (Dunk and Hawley 2009, p. 632). In occupation of younger forest stands may 1920, p. 165; Brown 1964, p. 647; Maser other words, red tree voles be relatively short-lived (Diller 2010, 1966, p. 40; Corn and Bury 1986, p. 404; demonstrated strong selection for pers. comm.) or intermittent (Hopkins Thompson and Diller 2002, entire; nesting in stands with older forest 2010, pers. comm.). Swingle and Forsman 2009, p. 277), characteristics, even though that forest After weighing all of the best available most comparisons of relative abundance type was relatively rare across the information, we conclude that although from pitfall trapping and nest presence landscape. Conversely, tree voles red tree voles may use younger forest data show increased occurrence in older avoided nesting in younger stand types types to some degree, the forests throughout the range of these that were much more common across preponderance of evidence suggests red species (Corn and Bury 1986, p. 404; the landscape. tree voles demonstrate strong selection Corn and Bury 1991, pp. 251–252; Trees containing tree vole nests are for forests with older forest conditions, Ruggiero et al. 1991, p. 460; Meiselman significantly larger in diameter and as well as contiguous forest conditions. and Doyle 1996, p. 38; Gomez and height than those without nests Whether tree voles can potentially Anthony 1998, p. 296; Martin and (Gillesberg and Carey 1991, p. 785; persist in younger forests over the long McComb 2002, p. 261; Jones 2003, p. 29; Meiselman and Doyle 1996, p. 36 for the term is unknown (USDA and USDI Dunk and Hawley 2009, entire). The Sonoma tree vole). Other forest 2007, p. 291). However, although the occurrence of active nests in remnant conditions associated with red tree vole data are limited, the available evidence older trees in younger stands indicates habitat include the number of large trees suggests that red tree voles likely do not the importance of legacy structural and variety of tree size distribution maintain long-term or consistent characteristics (USDA and USDI 2002, (Dunk and Hawley 2009, p. 632). Carey populations in younger stands (Diller p. 1). Although the bulk of the evidence (1991, p. 8) suggested that tree voles 2010, pers. comm.; Hopkins 2010, pers. points to forests with late-successional seem especially well-suited to the stable comm.). There is a relatively large body characteristics as important to the red conditions of old-growth Douglas-fir of evidence, on the other hand, that red tree vole, we lack specific data on the forests (multi-layered stands over 200 tree voles exhibit strong selection for minimum size of trees or stands years old, with decay elements). Old- areas of contiguous habitat exhibiting
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conditions characteristics of older, forests in early-seral condition to by making the leaves unpalatable. Tree mature forests (Corn and Bury 1986, p. represent low-quality, transitional voles have adapted to their diet of 404; Corn and Bury 1991, pp. 251–252; habitat for red tree voles. In addition, conifer needles by stripping away these Ruggiero et al. 1991, p. 460; Meiselman we consider it likely that younger resin ducts and eating the more and Doyle 1996, p. 38; Gomez and forests only play a role as interim, low- palatable portion of the needle (Benson Anthony 1998, p. 296; Martin and quality habitat for red tree voles if they and Borell 1931, pp. 228–230; Perry McComb 2002, p. 261; Jones 2003, p. 29; occur in association with older forest 1994, pp. 453–454; Maser 1998, pp. Dunk and Hawley 2009, entire). We patches or remnants. 220–221; Kelsey et al. 2009, entire). therefore further conclude that Reproduction Resin ducts typically run the length of unfragmented forests with late- the needle, but may be located in successional characteristics are thus Red tree vole litter sizes are among different portions of the needle, most likely to provide for the long-term the smallest compared to other rodents depending on the tree species; this persistence of the species, and in this of the same subfamily, averaging 2.9 forces the tree vole to behave differently finding we consider these older forest young per litter (range 1 to 4) (Maser et depending on the tree species on which types as representative of high-quality al. 1981, p. 205; Verts and Carraway they forage. As an example, the resin habitat for the red tree vole. 1998, p. 310). Clifton (1960, pp. 119– ducts in Douglas-fir needles are located Tree voles may tolerate some forest 120) reported that captive tree voles along the outer edges of the needle, so fragmentation, but the point at which became sexually mature at 2.5 to 3.0 tree voles remove the outside edge and forest gaps become large enough to months of age. Females breed consume the remaining middle portion impede their movements or successful throughout the year, with most of the needle. Conversely, the resin dispersal is not known. Howell (1926, p. reproduction occurring between ducts of western hemlock are located 40) suggested that ‘‘considerable’’ February and September (Swingle 2005, away from the outside edges along the expanses of land without suitable trees p. 71). Red tree voles are capable of midline of the needle. Thus, voles are a barrier to tree vole movements. breeding and becoming pregnant foraging on hemlock needles will However, as noted earlier, known immediately after a litter is born (Clifton consume the outer edge of the needle dispersal distances for red tree voles are 1960, p. 130; Hamilton 1962, pp. 492– and discard the center (Clifton 1960, pp. quite short, ranging from 10 to 246 ft (3 495; Brown 1964, pp. 647–648), 35–45; Forsman and Swingle 2009, pers. to 75 m) (Swingle 2005, p. 63), with resulting in the potential for females to comm.; Kelsey et al. 2009, entire; Maser 1,115 ft (340 m) being the longest have two litters of differently aged 2009, pers. comm.). known dispersal distance (Biswell and young in their nests (Swingle 2005, p. Meslow, unpublished data referenced in 71; Forsman et al. 2009a, p. 270). Within the Sitka spruce plant series of USDA and USDI 2000b, p. 8). This Captive tree voles may have litters just the northern Oregon Coast Range of suggests that relatively small distances, over a month apart (Clifton 1960, p. Oregon, tree voles appear to prefer, and roughly less than 1,200 ft (366 m) 130). Forsman et al. (2009a, p. 270) perhaps require, a diet of western between forest patches, may serve as observed two female voles in the wild hemlock and Sitka spruce needles effective barriers to dispersal or that produced litters at 30 to 35 day (Walker 1930, p. 234; Forsman and recolonization for red tree voles. Radio- intervals. Young tree voles develop Swingle 2009, pers. comm.; Maser 2009, collared tree voles crossed logging more slowly than similar-sized rodents pers. comm.;). Voles in the Sitka spruce roads, first-order streams, and canopy of the same subfamily (Howell 1926, pp. plant series rarely forage on Douglas-fir, gaps up to 82 ft (25 m) wide (Biswell 49–50; Maser et al. 1981, p. 205), first even where it is available; foraging on and Meslow, unpublished data exiting the nest at 30 to 35 days old, and Douglas-fir only becomes more evident referenced in USDA and USDI 2000b, p. not dispersing until they are 47 to 60 where the Sitka spruce plant series 8; Swingle and Forsman 2009, p. 283). days old (Swingle 2005, p. 63; Forsman transitions into the adjacent western Some of these crossings occurred on et al. 2009a, pp. 268–269). hemlock series (Forsman and Swingle 2009, pers. comm.; Forsman and multiple occasions by a single vole. This Diet suggests that ‘‘small forest gaps’’ Swingle 2009, unpublished data). Maser (Swingle 2005, p. 79) may not greatly Tree voles are unique in that they feed (2009, pers. comm.) observed that tree impair tree vole movement, but exclusively on conifer needles and the voles adapted to a diet of western increasing gap size may be expected to tender bark of twigs that they harvest hemlock starved to death in captivity limit tree vole movement. In addition, from conifers. In most of their range, because they would not eat the Douglas- Swingle (2005, p. 79) suggested that the they feed primarily on Douglas-fir fir needles they were offered. Because necessity of descending to the ground to (Howell 1926, p. 52; Benson and Borell the resin ducts of western hemlock, cross openings may reduce survival. 1931, p. 230; Maser et al. 1981, p. 205). Sitka spruce, and Douglas-fir needles There are three records of red tree voles In portions of the northern coastal are in different locations on the needle, captured in clearcuts (Borrecco 1973, counties of Oregon (Lincoln, Tillamook, their removal requires a different pp. 34, 36; Corn and Bury 1986, pp. and Clatsop), tree voles also consume behavior depending on which species is 404–405; Verts and Carraway 1998, p. needles from western hemlock and Sitka being eaten (Clifton 1960, pp. 35–49; 310), in one case over 656 ft (200 m) spruce, and in some parts of their range Kelsey et al. 2009, entire). Maser (2009, from the forest edge. In two of these they feed on grand fir, bishop pine pers. comm.) suspected that voles raised instances, the authors suggested the (Pinus muricata), and introduced in stands of western hemlock never individuals were most likely in the act Monterrey pine (P. radiata) (Jewett learned the required behavior for eating of dispersing. 1920, p. 166; Howell 1926, pp. 52–53; Douglas-fir, although Walker (1930, p. In summary, based on our evaluation Walker 1930, p. 234; Wooster and Town 234) observed a captive vole raised on of the best scientific and commercial 2002, pp. 182–183; Forsman and hemlock needles that preferred hemlock data available, as detailed above, for the Swingle 2009, pers. comm.; Swingle but would eat fir or spruce in the purposes of this finding we consider 2010, pers. comm.). Conifer needles absence of hemlock. Conversely, voles older forests with late-successional contain filamentous resin ducts that are taken from Douglas-fir stands have been characteristics to represent high-quality filled with terpenoids, chemicals that observed to eat both Douglas-fir and habitat for red tree voles, and younger serve as defensive mechanisms for trees western hemlock in captivity (Clifton
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1960, p. 44; Maser 2009, pers. comm.), in what appeared to be attempts to standard taxonomic distinctions and the although voles appear to be reluctant to capture voles. biological expertise of the Department switch between tree species (Walker Swingle et al. (2010, p. 259) estimated and the scientific community 1930, p. 234; Forsman 2010, pers. annual survival of radio-collared tree concerning the relevant taxonomic comm.). voles to be 15 percent. Little is known group’’ (50 CFR 424.11(a)). As Tree voles appear to obtain water about the vulnerability of red tree voles previously noted, we were petitioned to from their food and by licking water off to predators in different habitats. list the dusky tree vole as a subspecies of tree foliage (Clifton 1960, p. 49; Maser Swingle (2005, pp. 64, 90) found that of of the red tree vole. The petitioners 1966, p. 148; Maser et al. 1981, p. 205; 25 documented cases of predation on requested that if we found that the Carey 1996, p. 75). In keeping captive radio-collared voles, most occurred in dusky tree vole was not a listable entity Sonoma tree voles, Hamilton (1962, p. young (22–55 years old) forests as a subspecies, then we subsequently 503) noted that it was important to keep (Forsman and Swingle 2009, pers. consider whether it should be listed as leaves upon which they fed moist, comm.). Predation by weasels, which the North Oregon Coast DPS of the red otherwise the voles would lose weight accounted for 60 percent of the tree vole. Alternatively, the petitioners and die. The need for free water in the predation events, occurred only in the requested that the dusky tree vole be form of rain or dew on foliage may 22–55-year-old forests, and 80 percent protected by listing the red tree vole explain why the distribution of tree of the weasel predation was on female because it is endangered or threatened voles is limited to relatively humid voles. Most of the radio-collared sample in a significant portion of its range. The forests in western Oregon and California consisted of females and were in young analysis to determine whether this is a (Howell 1926, p. 40; Hamilton 1962, p. forest, so forest age and vole gender viable subspecies or DPS according to 503). However, there are no quantitative explained little of the variation in the section 3(16) of the Act follows. data (Forsman 2010, pers. comm.; data on water consumption by tree Subspecies Analysis voles, and some forests in which they Swingle 2010, pers. comm.). Although there was no statistical difference in There is no universally accepted occur (e.g., portions of southwestern predation rates among forest ages and definition of what constitutes a Oregon) have little rain or dew during vole gender, Swingle et al. (2010, p. subspecies, and the use of the term the summer months. How they are able 260) suspected weasel predation on tree subspecies may vary among taxonomic to persist under such conditions is voles may be inversely proportional to groups (Haig et al. 2006, entire). To be unclear. nest height. Tree vole nests tend to be operationally useful, subspecies must be Mortality found in the lower portion of the tree discernible from one another (i.e., crown (Gillesburg and Carey 1991, pp. diagnosable), not merely exhibit mean In the only quantitative study 785–786; Swingle 2005, pp. 29–30), and differences (Patten and Unitt 2002, pp. conducted to date, Swingle et al. (2010, tree vole nests tend to be higher above 28, 34). This element of p. 258) found that weasels (Mustela the ground in older stands or larger trees ‘‘diagnosability,’’ or the ability to spp.) were the primary predators of red than in younger stands or smaller trees consistently distinguish between tree voles. However, many other (Zentner 1966, pp. 18–20; Vrieze 1980, populations, is a common thread that animals feed on tree voles, including pp. 18, 32–33; Meiselman and Doyle runs through all subspecies concepts. It ringtails (Bassariscus astutus) 1996, p. 38; Swingle 2005, pp. 29–30). is important to use multiple sources of (Alexander et al. 1994, p. 97), fisher Thus, tree voles could be more prone to information when evaluating a taxon’s (Martes pennanti) (Golightly et al. 2006, predation in shorter trees that comprise status. The greater the concurrence p. 17), northern spotted owls (Forsman younger stands and limit the height of among multiple morphological, et al., 1984, p. 40), barred owls (Strix nests above the ground. Swingle et al. molecular, ecological, behavioral, and varia) (Wiens 2010, pers. comm.), and a (2010, p. 261) also suggested that female physiological characteristics, the higher variety of other nocturnal and diurnal tree voles may be more susceptible to the level of confidence in the taxonomic raptors (Miller 1933, entire; Maser predation than males because they classification (Haig et al. 2006, p. 1591). 1965a, entire; Maser 1965b, entire; occupy larger, more conspicuous nests To assess subspecies classification for Forsman and Maser 1970, entire; and spend more time outside the nest the dusky tree vole, we evaluated all the Reynolds 1970, entire; Graham and collecting food for their young. available data to determine whether the Mires 2005, entire). Other documented Other mortality sources include evidence points to a consistent predators include the Steller’s jay disease, old age, storms, forest fires, and separation of the putative dusky tree (Cyanocitta stelleri) (Howell 1926, p. logging (Maser et al. 1981, p. 206). Carey voles from the remaining population of 60), a gopher snake (Pituophis catenifer) (1991, p. 8) suggested that forest fires red tree voles. If the assessment of these (Swingle et al. 2010, p. 258), domestic and logging are far more important multiple characteristics provides a clear dogs (Canis familiaris) (Swingle et al. mortality factors than predation in and consistent separation of the putative 2010, p. 258), and house cats (Felis limiting vole abundance. dusky tree vole subspecies from the catus) (Swingle 2005, pp. 90–91). In remaining red tree vole population, Defining a Species Under the Act addition, Maser (1966, p. 164) found such that any individual from the range tree vole nests that had been torn apart Section 3(16) of the Act defines of the dusky tree vole would likely be and inferred the destruction was likely ‘‘species’’ to include any species or correctly assigned to that subspecies on caused by northern flying squirrels ‘‘subspecies of fish or wildlife or plants, the basis of the suite of characteristics (Glaucomys sabrinus), raccoons and any distinct population segment of analyzed, that evidence would be (Procyon lotor), western gray squirrels any species of vertebrate fish or wildlife considered indicative of a likely valid (Sciurus griseus), or Douglas’ squirrels which interbreeds when mature’’ (16 subspecies. (Tamiasciurus douglasii), apparently in U.S.C. 1532(16)). Our implementing search of young voles. Forsman (2010, regulations at 50 CFR 424.11 provide Geography pers. comm.) recorded video footage of further guidance for determining As described under Range and northern flying squirrels, western gray whether a particular taxon or Distribution, there is no clear squirrels, and Douglas’ squirrels chasing population is a species for the purposes demarcation for the range of the tree voles or tearing into tree vole nests of the Act: ‘‘[T]he Secretary shall rely on putative dusky tree vole. All
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descriptions include the western slope definitively designates silvicola as a haplotype groups found in Miller et al. of the northern Oregon Coast Range, subspecies. While Hall (1981, p. 788) (2006a, entire) (see Genetics, above). typically Tillamook and Lincoln cited Johnson (1968, p. 27) as suggesting Maser (2007, pers. comm.; 2009, pers. Counties. Other descriptions expand a ‘‘subspecific relationship of the two comm.) postulated that the darker coat this range to include the east slope of taxa,’’ he also notes that this designation color in voles from the northern Oregon the Oregon Coast Range (Maser 1966, p. is a ‘‘provisional arrangement’’ because Coast Range was due to the denser, 16), and south to include the coastal of the existing uncertainty about the darker forests in which a darker coat portion of Douglas County (Maser 2009, relationship of the two taxa. provided a more cryptic coloration than a lighter coat color. Assuming this pers. comm.). Still others suggest tree Genetics voles found in the foothills of the hypothesis is correct, because there is a Cascade Range (Brown 1964, p. 648) and In this section and the Summary gradual transition of tree species and in the Columbia River Gorge (Howell section below we describe and analyze forest composition as one progresses 1926, p. 34) were dusky tree voles. the research on tree vole genetics as it south in the Coast Range, it is Contemporary descriptions of the dusky relates to answering the question of reasonable to hypothesize that a tree vole range usually reference whether or not the dusky tree vole is a corresponding change in coat color may Johnson and George (1991, p. 12), who, taxonomically valid subspecies of the also be gradual rather than abrupt and despite not finding any strong red tree vole. This should not be thus not easily discernable from the red morphometric or karyologic confused with our analysis later in this tree vole. This needs to be evaluated (chromosomal) differences between the document (see Distinct Vertebrate using a consistent and repeatable subspecies, state the two taxa, ‘‘* * * Population Segment Analysis) wherein method for comparing pelage color. now can be properly delineated we evaluate the genetics research as it Such an analysis is currently being geographically.’’ Johnson and George relates to its contribution towards conducted but is not available for this (1991, p. 12) go on to describe the dusky determining the discreteness and review (Forsman 2010, pers. comm.). tree vole range as the Pacific slope of the significance of a potential DPS of the In measuring multiple morphometric Oregon Coast Range in Tillamook and red tree vole. features, Johnson and George (1991, p. Bellinger et al. (2005, p. 207) failed to Lincoln Counties without substantiating 5) found statistical differences find detectable genetic differences the basis for their geographic distinguishing Oregon tree voles from between dusky and red tree voles, delineation. There is thus no clear and California samples, but were not able to suggesting that subspecific status may consistent description of what may easily detect discernable differences not be warranted. Miller et al. (2006a, p. constitute the range of the ‘‘dusky tree between samples within Oregon or 145) found three distinct genetic entities vole.’’ California. Miller et al. (2010, p. 69) in their analysis of mitochondrial DNA found statistically significant Blood Proteins of red tree voles throughout Oregon. For differences in some external Johnson (1968, p. 27) analyzed blood this analysis, we are interested in the morphological features between proteins of dusky tree voles, red tree genetic entity that Miller et al. (2006a, putative dusky tree voles and red tree voles, and heather voles (Phenacomys p. 151) labeled the ‘‘Northern Coast voles. Although these differences were intermedius) to determine whether range’’ sequence. While Miller et al. statistically significant in distinguishing Arborimus should remain as a subgenus (2006a, entire) do not describe specific between groups of tree voles, they were under Phenacomys or be elevated to a boundaries for this entity, the sampling of little diagnostic utility because they full genus. Multiple authors cite this locations in this entity are distributed were so subtle they could not be used work to support the classification of the across the northern Oregon Coast Range, to reliably classify an individual tree dusky tree vole as a subspecies of the extending south to latitudes roughly vole as a dusky tree vole or a red tree red tree vole (e.g., Maser and Storm equivalent with the cities of Eugene and vole (Miller et al. 2010, p. 67). A 1970, p. 64; Hall 1981, p. 788; Johnson Florence (see Figure 1 for city possible explanation for the statistical and George 1991, p. 1). However, we fail locations). This genetic entity difference, yet lack of diagnostic utility, to reach this conclusion based on encapsulates most of the range is that the morphological features Johnson’s (1968, p. 27) work. Johnson descriptions of the putative dusky tree measured also exhibited a positive (1968, p. 27) describes his results as vole. Although the objective of Miller et correlation with latitude; tree voles from follows: al. (2006a, entire) was not to address the the northern part of the range were taxonomy of the dusky tree vole, in larger than tree voles from the southern The tree mice of the species Arborimus subsequent conversations with the part of the range. This is a clinal pattern longicaudus (including A. silvicola) have in authors, they concluded that the genetic consistent with Bergmann’s Rule, an the past been included with the heather vole, Phenacomys intermedius. Two specimens of differences between these groups were ecological principle stating that larger P. intermedius (of two subspecies) and 16 sufficient to potentially support forms of species tend to be associated specimens of A. longicaudus (of two subspecies recognition if there were with cooler climate and higher latitude subspecies) were examined. In these two congruent differentiations in other (Miller et al. 2010, p. 69). species the serum proteins and hemoglobins characteristics (Miller and Haig 2009, Behavior have suggested combining the named forms pers. comm.). of Arborimus into a single species, and Tree voles within the narrow band of separating the genera Arborimus and Morphology Sitka spruce found along the coastal Phenacomys. The dusky tree vole has been portion of the northern Oregon Coast Although Johnson (1968, p. 27) described as darker than the red tree Range north of Newport exhibit a concluded that the named forms vole (Bailey 1936, p. 198; Maser et al. different diet than voles in the rest of longicaudus and silvicola should be 1981, p. 201; Hall 1981, p. 788; Johnson the range, foraging on Sitka spruce or combined, he did not make any further and George 1991, p. 12), but there has western hemlock rather than on determination on whether or not been no analysis to indicate an Douglas-fir (Walker 1930, p. 234; silvicola should be retained as a identifiable change in coat color either Forsman and Swingle 2009, pers. subspecies. We therefore question between the two entities or that comm.) (see above under Diet). This diet whether Johnson (1968, p. 27) corresponds with the boundaries of the requires a different treatment of needles
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than in other areas because resin ducts (Miller et al. 2010, entire). The Oceanic and Atmospheric in spruce and hemlock are located in prevailing behavior of foraging on Administration—Fisheries), published different parts of the needle than in western hemlock and Sitka spruce the Policy Regarding the Recognition of Douglas-fir (Kelsey et al. 2009, pp. 12– within the Sitka spruce plant series does Distinct Vertebrate Population Segments 13). While this behavioral difference not correspond to the geographic range Under the Endangered Species Act (DPS exists primarily in the Sitka spruce of the ‘‘Northern Coast range’’ genetic Policy) in the Federal Register on plant series of the northern Oregon entity described by Miller et al. (2006a, February 7, 1996 (61 FR 4722) to guide Coast Range, it comprises only a small p. 151), but comprises only a small the implementation of the DPS portion of the area within the northern portion of the range of that haplotype provisions of the Act. Under the DPS Coast Range genetic sequence found by group. Presumptive differences in Policy, three elements are considered in Miller et al. (2006a, pp. 150–151; see coloration, which served as one of the the decision regarding the establishment Genetics, above) and does not primary bases for the original and classification of a population of a correspond to the general boundaries of subspecies distinction of the dusky tree vertebrate species as a possible DPS. that genetic entity, nor does it vole, have never been quantified. Such These are applied similarly for correspond to any of the various a conventional approach to subspecies additions to and removals from the Lists boundaries of the putative dusky tree designation, used historically and of Endangered and Threatened Wildlife vole’s range. frequently based on apparent geographic and Plants. These elements are: or clinal variation, is often not Summary (1) The discreteness of a population in supported when tested by more rigorous relation to the remainder of the species Bellinger et al. (2005, p. 207) analyses of multiple characters (e.g., to which it belongs; concluded that the absence of detectable Thorpe 1987, pp. 7, 9). (2) The significance of the population genetic differences between red tree Given the lack of diagnostic segment to the species to which it voles and putative dusky tree voles, characteristics that correspond with the belongs; and combined with the lack of consistently ‘‘Northern Coast range’’ haplotype group (3) The population segment’s verifiable morphological differences, described by Miller et al. (2006a, p. 151) conservation status in relation to the suggested that the subspecific status of and the findings of Bellinger et al. (2005 Act’s standards for listing, delisting, or the dusky tree vole might not be entire) and Miller et al. (2010 entire) reclassification (i.e., is the population warranted. Miller et al. (2006a, entire) that there are no detectable genetic or segment endangered or threatened?). found evidence of marked genetic morphological differences yet found differences in the red tree vole that between dusky tree voles and red tree In the petition, we were asked to could indicate the existence of a voles, we do not believe there is consider listing a DPS for the red tree possible subspecies, although they did sufficient evidence to indicate that the vole in the North Oregon Coast portion not explicitly address the implications dusky tree vole is a distinct subspecies. of its range if we did not conclude that of their work on red tree vole taxonomy. Although the dusky tree vole was the dusky tree vole was a valid Subsequent conversations with the recognized as a subspecies in Wilson subspecies of the red tree vole. In authors, however, indicated that and Reeder’s Mammal Species of the accordance with our DPS Policy, this observed genetic differences were World (2005, pp. 962–963), we note that section details our analysis of the first sufficient to potentially support this reference did not recognize, or was two elements, described above, to assess recognition of the dusky tree vole as a published prior to, the availability of the whether the vertebrate population subspecies if there were additional work of Bellinger et al. (2005, entire) segment under consideration for listing differentiations in identifiable and Miller et al. (2006a, entire; 2010 may qualify as a DPS. characteristics and if the boundaries of entire). Subsequent to the publication of Specific to red tree vole genetics, as those differentiations were congruent some of these latter works, the Oregon we noted above (see Subspecies with the ‘‘Northern Coast range’’ genetic Natural Heritage Information Center Analysis), in this section we have grouping identified in Miller et al. ceased recognition of the dusky tree reviewed the research on red tree vole (2006a, p. 151). However, our review of vole as a subspecies (ORNHIC 2007, p. genetics and evaluated whether or not the best and most current data on the 17), as did the U.S. Forest Service and the genetics evidence supports genetics, behavior, morphology, and Bureau of Land Management’s Survey identifying a population segment that range of the putative dusky tree vole and Manage program (USDA and USDI meets the discreteness and significance reveals no other characteristics of 2007, p. 289). Finally, the dusky tree standards described above. Although diagnostic utility that correspond with vole is not recognized as a valid genetic research indicates that the the ‘‘Northern Coast range’’ haplotype subspecies of the red tree vole in the putative dusky tree vole may not be a grouping identified by Miller et al. Integrated Taxonomic Information valid subspecies (e.g. Bellinger et al. (2006a, p. 151). There is not a consistent System (ITIS 2011). Therefore, based on 2005, entire; Miller et al. 2010, entire), and well-substantiated range the best available scientific and whether or not a population segment is description of the dusky tree vole. commercial data, as described above, we discrete and significant is a different Although some morphological have concluded that the dusky tree vole question and these works do not differences may occur between the red is not a valid subspecies, and therefore exclude the possibility that there is a tree vole and the putative dusky tree is not eligible for listing as such under discrete and significant population vole, these differences have little the Act. We must next evaluate whether segment for the red tree vole. diagnostic utility and may only the North Oregon Coast population of Discreteness represent a clinal variation, as would be the red tree vole is a DPS to determine expected between northern and whether it would constitute a listable The DPS Policy’s standard for southern populations of the red tree entity under the Act. discreteness requires an entity to be vole based on Bergmann’s Rule (an adequately defined and described in ecogeographic principle that states that Distinct Vertebrate Population Segment some way that distinguishes it from animals at more northerly latitudes tend Analysis other representatives of its species. A to be larger than individuals of the same The Service and the National Marine population segment of a vertebrate species at more southerly latitudes) Fisheries Service (now the National species may be considered discrete if it
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satisfies either of the following two pp. 150–153). Miller et al. (2006a, p. Range Physiographic Province (FEMAT conditions: 151) labeled the eastern subdivision as 1993, pp. II–27, IV–7) from the (1) It is markedly separated from other the ‘‘Northern Cascade range’’ sequence, Columbia River south to the Siuslaw populations of the same taxon as a and the western subdivision the River. In addition, the Willamette Valley consequence of physical, physiological, ‘‘Northern Coast range’’ sequence, to the east of the northern Oregon Coast ecological, or behavioral factors reflecting the associated mountain Range provides a geographic barrier for (quantitative measures of genetic or ranges. As described in the Taxonomy genetic exchange between red tree voles morphological discontinuity may and Description section, above, genetic found in the northern Oregon Coast provide evidence of this separation); or researchers considered the degree of Range and those found in the northern (2) It is delimited by international genetic difference between the 3 Cascade Range; the western edge of the governmental boundaries within which groupings of red tree voles to be highly Willamette Valley thus forms a natural significant differences in control of significant (Miller and Haig 2009, pers. eastern boundary for the red tree vole exploitation, management of habitat, comm.). We thus consider the population in the northern Oregon Coast conservation status, or regulatory population of red tree voles represented Range. mechanisms exist. by the ‘‘Northern Coast range’’ As for the southern limit of the The North Oregon Coast portion of the haplotypes to be markedly separated ‘‘Northern Coast range’’ haplotypes, red tree vole range is markedly from other populations of the taxon as there is no identifiable geographic separated from the rest of the species’ evidenced by quantitative measures of boundary that may act as a genetic range based on the genetic genetic discontinuity. barrier. We chose the Siuslaw River as discontinuities described by Miller et al. Red tree voles within the ‘‘Northern an identifiable feature that approximates (2006a, pp. 150–151). Miller et al. Coast range’’ haplotype (genetic) group a divide between Miller et al.’s (2006a, (2006a, entire) examined identified by Miller et al. (2006a, pp. pp. 150–151) southern and northern phylogeographical patterns by analyzing 150–151) came from several specific haplotypes in the Oregon Coast Range. mitochondrial control region sequences sampling locations, but the researchers This is an area where vegetation of 169 red tree voles sampled from 18 did not attempt to delineate precise transitions from more mesic vegetation areas across the range of the species in boundaries between the three genetic species in the north to drier vegetation Oregon. In addition, they analyzed groupings of red tree voles in Oregon. in the south (Franklin and Dyrness Cytochrome b sequences from a subset We have therefore defined the boundary 1973, p. 72; McCain 2009, pers. comm.). of these samples. Through phylogenetic of the northern Coast Range population In addition, the Siuslaw River creates an network and spatial genetic analyses, of red tree voles based on a combination approximate break between ecosystems the researchers found a primary genetic of convergent genetic, physical, and that experience longer fire return discontinuity separating red tree voles ecological characteristics. To assist in intervals to the north and shorter return from the northern (areas A through F this delineation, we relied in part on the intervals to the south (Hardt 2009, pers. (Miller et al. 2006a, Figure 1, pp. 146, physiographic provinces used in the comm.). This area transitions into the 151–152)) and southern (areas G Northwest Forest Plan because they southern end of the western hemlock through R (Miller et al. 2006a, Figure 1, incorporate physical, biological, and vegetation zone, which has a patchier pp. 146, 151–152)) sampling areas; a environmental factors that shape large fire severity distribution as compared to secondary discontinuity separated the landscapes (FEMAT 1993, p. IV–5). In the northern Oregon Coast Range, which northern sampling areas into eastern addition, much of the forest-related is characterized by high fire severities (areas B, E, and G (Miller et al. 2006a, research relevant to our analysis has (Agee 1993, pp. 211–213). This Figure 1, pp. 146, 151–152)) and been based on these province delineation of the boundary of the western (areas A, C, D, and F (Miller et delineations. We interpret the area northern Oregon Coast Range al. 2006a, Figure 1, pp. 146, 151–152)) occupied by the ‘‘Northern Coast range’’ population of the red tree vole, subdivisions separated by the genetic group of red tree voles to described above, is shown in Figure 2. Willamette Valley (Miller et al. 2006a, include that portion of the Oregon Coast BILLING CODE 4310–55–P
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BILLING CODE 4310–55–C zone of secondary contact between northwestern Oregon, with western There is some overlap of haplotypes lineages that were divided during the hemlock and Sitka spruce remaining in the lineage of sequences unique to most recent glaciation approximately only in isolated, protected areas the northern Oregon Coast Range and 12,000 years ago (Miller et al. 2006a, p. (Bonnicksen 2000, p. 25). These the southern portion of the tree vole 154). Although the Cordilleran ice sheet potential bottlenecks in northern range (Miller et al. 2006a, pp. 153–154). of the Wisconsin glaciation did not populations may have separated red tree This overlap, combined with the overlay present-day Oregon, associated voles into separate lineages that absence of an obvious geographical climate change during the glaciation continue to exist today (Miller et al. barrier to genetic interchange, leads to a fragmented the forest landscape 2006a, p. 154). A similar genetic hypothesis that the observed genetic (Bonnicksen 2000, pp. 8–10, 15–16, 24– discontinuity is found in the southern discontinuity in this area represents a 25). Subalpine forests occupied much of torrent salamander (Rhyacotriton
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variegatus) in this vicinity (Miller et al. (2) Evidence that loss of the discrete genetic grouping identified by Miller et 2006b, p. 565). In addition, multiple population segment would result in a al. (2006a, p. 151), this behavior is plant species exhibit genetic significant gap in the range of the taxon; exhibited by tree voles in the western discontinuities in the vicinity of the (3) Evidence that the discrete portions of Lincoln, Tillamook, and central Oregon Coast (Soltis et al. 1997, population segment represents the only Clatsop Counties. While there is pp. 353–359). surviving natural occurrence of a taxon evidence of individual red tree voles that may be more abundant elsewhere as We conclude that the North Oregon elsewhere in the range foraging on an introduced population outside its species other than Douglas-fir, these are Coast population of the red tree vole is historical range; or rare occurrences and nowhere else in markedly separated from the remainder (4) Evidence that the discrete the range of the red tree vole does a non- of the red tree vole population and population segment differs markedly Douglas-fir diet dominate. This meets the discreteness criterion for the from other populations of the species in alternative diet appears well ingrained, DPS Policy based on quantitative its genetic characteristics. as evidenced by wild voles adapted to measures of genetic discontinuity. Persistence of the DPS in an a diet of western hemlock refusing to eat Genetic distribution in the red tree vole ecological setting that is unique or Douglas-fir in captivity and ultimately is not random, with a markedly distinct unusual for the taxon. The Sitka spruce starving to death (Maser 2009, pers. group of haplotypes located in the plant series in the northern Oregon comm.). This ecological setting has northern Oregon coast. The Willamette coast appears to be a unique ecological resulted in a foraging behavior that Valley likely serves as a genetic barrier setting for a portion of the population of appears relatively inflexible and unique between the North Oregon Coast tree the red tree vole that was determined to to the red tree voles in this area, as red vole population and tree voles in the be discrete. The Sitka spruce series tree voles in forests dominated by northern Cascades. While there is no occurs in the strongly maritime climate Douglas-fir apparently exhibit greater currently identifiable geographic barrier near the ocean, following the coastal fog behavioral plasticity and have been to the south, glacial activity at the end up river valleys. Sitka spruce ranges observed to eat western hemlock and of the Pleistocene Epoch may have been from southcentral Alaska to northern Sitka spruce in captivity (Clifton 1960, responsible for creating multiple California, with the most extensive p. 44; Maser 2009, pers. comm.). lineages of red tree voles, as well as portion of its range occurring in The ecological setting and unique other species, that are still identifiable southeastern Alaska and northern foraging behavior of red tree voles in the today. The Siuslaw River is an British Columbia, Canada (Burns and northern Oregon Coast Range create identifiable feature that appears to be Honkala 1990, Sitka spruce chapter). different selective pressures for the approximately coincident with the Although present at some level along animals in this portion of their range southernmost boundary of the most of the Oregon coastline, it is more relative to red tree voles in the ‘‘Northern Coast range’’ genetic group of limited in this southern portion of its remainder of the taxon’s range. Such the red tree vole (Miller et al. 2006a, range, but extends much farther inland selective pressures are the foundation of p. 151). toward the northern part of the Oregon speciation, and such distinct traits may Coast Range than in the southern be crucial to species adaptation in the Significance portion, where ridge systems along the face of changing environments (Lesica coastline intercept the fog layer If we have determined that a and Allendorf 1995, p. 756). We find the (Franklin and Dyrness 1973, pp. 58–70; vertebrate population segment is discrete population of tree voles in the McCain and Diaz 2002, p. 59). With the discrete under our DPS Policy, we then northern Oregon Coast Range contains a exception of scattered small patches on consider its biological and ecological unique ecological setting in the form of the southern and central Oregon coast, significance to the taxon to which it the Sitka spruce plant series because the the majority of the Sitka spruce plant belongs in light of Congressional plant series is extremely limited within series in Oregon lies in the area guidance (see Senate Report 151, 96th the red tree vole range, and because of encompassed by the North Oregon Coast Congress, 1st Session) that the authority the relatively unique and inflexible population of red tree voles (McCain to list a DPS be used ‘‘sparingly’’ while foraging behavior tied to this plant and Diaz 2002, p. 61). It is in the Sitka series that may be indicative of ongoing encouraging the conservation of genetic spruce plant series that the alternative diversity. To evaluate whether a discrete speciation. However, the geographic tree vole diet of western hemlock and range in which this ecological setting vertebrate population may be significant Sitka spruce needles predominates (see to the taxon to which it belongs, we and associated unusual foraging Diet section). Douglas-fir appears to behavior is expressed does not consider the best available scientific have been historically uncommon in the correspond to the range of the tree voles evidence. As precise circumstances are Sitka spruce series (Agee 1993, p. 194). identified under the discreteness likely to vary considerably from case to Little variation in annual temperature, criterion, above, as it occurs in only a case, the DPS Policy does not describe minor summer plant moisture stress, subset of the range of tree voles with the all the classes of information that might and very high precipitation make the ‘‘Northern Coast range’’ genetic be used in determining the biological Sitka spruce series extremely grouping (Miller et al. 2006a, p. 151). and ecological significance of a discrete productive, producing large trees Therefore, although we recognize this population. However, the DPS Policy relatively quickly, and containing plant ecological setting and the associated describes four possible classes of associations that tend to develop and unique foraging behavior of tree voles to information that provide evidence of a maintain older forest characteristics be potentially important from an population segment’s biological and important to a variety of wildlife evolutionary perspective, we find that ecological significance to the taxon to species. the discrete population of tree voles in which it belongs. This evaluation may The Sitka spruce plant series is the the northern Coast Range as a whole do include, but is not limited to: only portion of the red tree vole range not meet this significance criterion (1) Persistence of the discrete where the consumption of western under the DPS policy. population segment in an ecological hemlock and Sitka spruce is the Evidence that loss of the DPS would setting that is unusual or unique for the dominant foraging behavior. Within the result in a significant gap in the range taxon; extent of the ‘‘Northern Coast range’’ of the taxon. The loss of the North
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Oregon Coast portion of the red tree vole population represents the only haplotypes from the red tree vole range would result in a roughly 24 surviving natural occurrence of a taxon population. Retaining genetic variation percent reduction in the range of the red that may be more abundant elsewhere as provides a wider capability for species tree vole. This loss is significant for an introduced population outside its to adapt to changing environmental multiple reasons, in addition to the fact historical range. The North Oregon conditions (Frankham et al. 2002, p. 46). that it represents nearly one-quarter of Coast population of the red tree vole is Peripheral populations that are known the total range of the species. For one, not the only surviving natural to be genetically divergent from other it would occur in the part of the range occurrence of the species and has not conspecific populations, such as the where the alternative foraging behavior been introduced outside of its historical North Oregon Coast population of the of feeding on spruce and hemlock is the range. Consequently, this factor is not red tree vole, may have great dominant behavior observed. Although relevant to our determination regarding conservation value in providing a this behavior is expressed in only a significance. species with the capacity to adapt and subset of this portion of the range, it is Evidence that the DPS differs evolve in response to accelerated unique to this portion of the range and markedly from other populations of the environmental changes (Lesica and is of potential evolutionary significance, species in its genetic characteristics. Allendorf 1995, p. 757). Changing therefore its loss would be significant to Red tree voles exhibit marked genetic environmental conditions are almost a the taxon as a whole. Secondly, while structure. As described under certainty for the red tree vole, given the loss of the North Oregon Coast Discreteness, above, Miller et al. (2006a, prevailing recognition that warming of population would not create entire) characterized patterns of genetic the climate system is unequivocal (IPCC discontinuity in the remaining range, divergence across the range of the red 2007, p. 30). The importance of species at the edge of their range may be tree vole in western Oregon based on maximizing the genetic capacity to important in maintaining opportunities analyses of mitochondrial DNA from 18 adapt and respond to the environmental for speciation and future biodiversity sampling areas. The results of their changes anticipated is therefore (Fraser 1999, p. 50), allowing adaptation spatial analysis of molecular variance magnified. Furthermore, preservation of to future environmental changes (Lesica revealed three distinctive genetic red tree voles and their unique genetic and Allendorf 1995, p. 756). groupings of red tree voles in Oregon: A composition at the northern extent of Furthermore, peripheral populations ‘‘southern’’ haplotype group, and a their range may be particularly may represent refugia for species as ‘‘northern’’ haplotype group that was important in the face of climate change, their range is reduced, as described by further subdivided into 2 groups, the as most northern-hemisphere temperate Lomolino and Channell (1995, p. 339), ‘‘Northern Cascade range’’ and species are shifting their ranges who found range collapses in mammal ‘‘Northern Coast range’’ groups (Miller northward in response to that species to be directed towards the et al. 2006a, Figure 3, p. 151). The phenomenon, and species that cannot periphery. Genetically divergent sampling areas that correspond to the shift northward have suffered range peripheral populations, such as the ‘‘Northern Coast range’’ subdivision of contractions from loss of the North Oregon Coast population of the the ‘‘northern’’ group (Areas A, C, D, southernmost populations (Parmesan red tree vole, are often of and F) correspond to the entity we have 2006, pp. 647–648, 753; IPCC 2007, p. disproportionate importance to the described here as the North Oregon 8). Given that the Columbia River species in terms of maintaining genetic Coast population of the red tree vole. In presents an apparent absolute barrier to the 4 sampling areas for the ‘‘Northern diversity and therefore the capacity for northward expansion of the species, the Coast range’’ genetic sequence (Miller et evolutionary adaptation (Lesica and northern Coast Range population of the al. 2006a, p. 151), 20 out of the 21 Allendorf 1995, p. 756). Finally, in the red tree vole may provide an important D-loop haplotypes identified were face of predictions that climate change refugium for the persistence of the unique to those locations, and in 3 of 4 will result in species’ ranges shifting species if more southerly populations sampling areas, 100 percent of the northward and to higher elevations are extirpated in the face of climate individuals sampled had a location- (Parmesan 2006, pp. 648–649; IPCC change. Losing an entire unique genetic specific haplotype (60 percent of the component of the red tree vole, with its 2007, p. 8; Marris 2007, entire) (see individuals had a location-specific inherent adaptive capabilities, is Factor E. Other Natural or Manmade haplotype in the fourth sampling area; significant and could compromise the Factors Affecting the Species’ Continued a single haplotype from Area C was also long-term viability of the species as a Existence), the northern Oregon Coast detected in Area N) (Miller et al. 2006a, whole. We therefore conclude the Range may become a valuable refugium Table 1, p. 148; Appendix, pp. 158– marked difference in genetic from climate change effects for the 159). Although the researchers could characteristics of the North Oregon species, as it includes the northernmost not identify a strict discontinuity or Coast population relative to other portion of the red tree vole’s range as barrier between the northern and populations of the red tree vole meets well as higher elevations near the southern groupings, which exhibited the the significance criterion of the DPS Oregon Coast Range summit. Based on greatest genetic distances, they suggest Policy. the above considerations, we therefore that the Willamette Valley serves as an conclude that loss of the North Oregon important phylogeographical barrier DPS Conclusion Coast population of the red tree vole that is likely responsible for the We have evaluated the North Oregon would result in a significant gap in the secondary genetic discontinuity Coast population of the red tree vole to range of the taxon. identified between red tree voles in the determine whether it meets the Evidence that the DPS represents the western (‘‘Northern Coast range’’ definition of a DPS, addressing only surviving natural occurrence of a sequence) and eastern (‘‘Northern discreteness and significance as taxon that may be more abundant Cascade range’’ sequence) portions of required by our policy. We have elsewhere as an introduced population the northern haplotypes group (Miller et considered the genetic differences of the outside its historical range. As part of a al. 2006a, pp. 151, 155). North Oregon Coast population relative determination of significance, our DPS Loss of the North Oregon Coast to the remainder of the taxon, the Policy suggests that we consider population of the red tree vole would ecological setting of the northern whether there is evidence that the eliminate a unique set of genetic Oregon Coast Range, and the proportion
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of the range of the red tree vole that the vole, based on the five listing factors observers using ground-based survey North Oregon Coast population established by the Act. methods may only see approximately comprises. We conclude that the North half of the nests, with a bias towards Summary of Information Pertaining to Oregon Coast population of the red tree observing more nests in younger forests the Five Factors voles is a valid distinct population than in older forests due to the greater segment under the 1996 DPS Policy Section 4 of the Act (16 U.S.C. 1533), visibility (Howell 1926, p. 45; Swingle (Figure 2). The North Oregon Coast and implementing regulations (50 CFR 2005, pp. 78, 80–81; Swingle and population meets the discreteness part 424) set forth procedures for adding Forsman 2009, p. 284). While nests can criterion of the DPS Policy because it is species to, removing species from, or be counted and assessments have been markedly separated from the remainder reclassifying species on the Federal made of the activity status of the nests, of the taxon based on genetic Lists of Endangered and Threatened translating nest counts to numbers of differences. Genetic distribution in the Wildlife and Plants. Under section voles does not yield good population red tree vole is not random, but exhibits 4(a)(1) of the Act, a species may be estimates because some nests will be a markedly distinct group of haplotypes determined to be endangered or missed, some individuals occupy located in the northern Oregon Coast threatened based on any of the multiple nests, and determining Range (Miller et al. 2006a, entire). We following five factors: whether nests are actively occupied is also conclude that the North Oregon (1) The present or threatened not possible without climbing to the Coast population of red tree voles is destruction, modification, or nests and dissecting or probing them for significant on multiple accounts. The curtailment of its habitat or range; voles (Swingle and Forsman 2009, p. loss of this population would virtually (2) Overutilization for commercial, 284). Using the presence or absence of eliminate a unique genetic component recreational, scientific, or educational green resin ducts and cuttings to of the red tree vole, substantially purposes; determine the activity status of nests, reducing genetic diversity and (3) Disease or predation; which formerly had been a common consequently limiting the species’ (4) The inadequacy of existing method used in tree vole surveys, is ability to evolve and adapt to changing regulatory mechanisms; and now known to be unreliable for environments. Loss of this population, (5) Other natural or manmade factors assessing actual nest occupancy by which comprises 24 percent of the range affecting its continued existence. voles because the resin ducts can retain of the red tree vole, would result in a In making this finding, information a fresh appearance for long periods of significant gap in the range, primarily pertaining to the North Oregon Coast time if stored in the nest or out of because of the value of peripheral DPS of the red tree vole in relation to sunlight, resulting in potential populations in maintaining diversity the five factors provided in section overestimates of active nest occupancy and evolutionary adaptation, and 4(a)(1) of the Act is discussed below. In (USDA and USDI 2007, p. 290). because this area may provide a considering what factors might Although historical observations of valuable refugium in the event of constitute threats to a species, we must tree voles are useful for assessing the predicted climate change. The loss of look beyond the exposure of the species range of the species, they may also be red tree voles in the northern Oregon to a particular factor to evaluate whether biased because collectors did not Coast Range would also result in the the species may respond to that factor sample randomly. Thus, historical loss of a unique alternative foraging in a way that causes actual impacts to locations of tree voles tend to occur in behavior exhibited by tree voles in the the species. If there is exposure to a clusters where a few collectors spent a Sitka spruce plant series. Although this factor and the species responds lot of time searching for them. Until behavior occurs in a subset of the area negatively, the factor may be a threat extensive surveys were conducted by encompassed by the North Oregon Coast and, during the status review, we the Forest Service and BLM as part of population (Forsman and Swingle 2009, attempt to determine how significant a the Survey and Manage program unpublished data), it is of potential threat it is. The identification of factors adopted in 1994 under the NWFP, much evolutionary significance to the species; that could impact a species negatively of the range of the red tree vole had therefore the loss of that portion of the may not be sufficient to compel a never been searched. The lack of species’ range that includes this finding that the species warrants listing. historical documentation of tree vole subpopulation would be of significance The information must include evidence presence thus cannot be interpreted as to the taxon as a whole. sufficient to suggest that these factors, meaning that tree voles had limited Because this population segment singly or in combination, are operative populations or were historically absent meets both the discreteness and threats that act on the species to the from an area, especially if that area significance elements of our DPS Policy, point that the species may meet the formerly provided suitable forest habitat the North Oregon Coast population definition of endangered or threatened for tree voles and was contiguous with segment of the red tree vole qualifies as under the Act. known occupied areas. Surveys by a DPS in accordance with our DPS Factor A. The Present or Threatened naturalists in the late 1800s and early Policy, and as such, is a listable entity Destruction, Modification, or 1900s were more of an inventory to find under the Act (hereafter ‘‘North Oregon Curtailment of Its Habitat or Range new species and to determine species Coast DPS’’ of the red tree vole). presence as opposed to determining Because we have determined the DPS to Past and Current Range and Abundance abundance of a particular species be a listable entity, we do not need to Because of its arboreal existence and (Jobanek 1988, p. 370). Only portions of analyze the alternative presented by the difficulty to observe and capture, little Oregon were surveyed, and coverage petitioners, which was protecting what is known about the past and current was cursory and localized. Given the they labeled the dusky tree vole via population sizes of red tree voles. It is arboreal existence of the red tree vole listing the red tree vole because it is difficult to accurately estimate the size and difficulty of finding and observing endangered or threatened in a of a local tree vole population, let alone them, few specimens were collected or significant portion of its range. Below the population of the entire species observed until more was understood we provide an analysis of threats to the (Howell 1926, p. 56; Blois and Arbogast about their life history (Bailey 1936, p. North Oregon Coast DPS of the red tree 2006, p. 958). Estimates indicate that 195; Jobanek 1988, pp. 380–381). Many
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nests were simply inaccessible to early throughout much of their range in decreases in Sonoma tree vole numbers naturalists. Nests were often high up in Oregon with the exception of the have been observed, although not big trees, many of which were too large northern Oregon Coast Range, quantified, over the past decade (Diller to climb without the benefit of modern particularly the area within the DPS 2010, pers. comm.). The weight of climbing equipment, or the trees lacked north of Highway 20. This portion of the evidence suggesting that tree voles are enough branches on the lower bole to Coast Range north of Highway 20 less abundant now increases upon readily free-climb (e.g. Jobanek 1988, p. accounts for nearly three-quarters of the considering that most historical 391). Howell (1921, p. 99) noted that DPS. Within the DPS, 36 percent of the observations were by naturalists who there was little hope for finding tree Federal land, 92 percent of the State and primarily collected voles from younger voles in virgin timber because of the County ownership, and 77 percent of forests where nests were more easily large trees and the abundant moss that the private ownership lies north of observable and accessible by free- might conceal ‘‘a score of hidden nests.’’ Highway 20 (Figure 2). In other words, climbing (e.g. Howell 1926, p. 42; Vernon Bailey, Chief Naturalist of the this portion of the DPS is primarily in Clifton 1960, p. 34; Maser 2009, pers. U.S. Bureau of Biological Survey, State, County, and private ownership, comm.; Forsman 2010, pers. comm.). considered the red tree vole to be with relatively little Federal land. In the These early naturalists were limited in abundant in the wild yet rare in northern Oregon Coast Range north of the size and form (e.g., presence or museum collections because of the Highway 20, tree voles are now absence of low-lying limbs that allowed difficulty in collecting them (Jobanek considered uncommon and sparsely for free-climbing) of trees they could 1988, p. 382). Murray Johnson, the most distributed compared to the rest of the climb, unlike current researchers, yet prolific early collector of tree voles, range, based on observations of vole found many voles with relatively little spent most of his time searching in nests classified as recently occupied effort. In contrast, researchers in recent young forests because he could not (USDA and USDI 2007, pp. 289, 294). years searching these same areas have climb big trees (Forsman 2010, pers. Furthermore, the few nests that are captured comparatively few voles per comm.). recorded in this portion of the DPS unit effort, using state-of-the-art Red tree voles are found on both the likely result in overestimation of tree climbing gear to access every potential eastern and western slopes of the vole occupancy given errors in nest nest observed, regardless of tree form or Oregon Coast Range. Although there are activity classification (USDA and USDI size (Forsman 2009, pers. comm.; no records of red tree voles in Clatsop 2007, p. 290) and the difficulty in Forsman and Swingle 2006, County north of Saddle Mountain or in translating nest counts to vole numbers unpublished data; 2009, pers. comm.). Columbia County, there is no reason to discussed earlier in this section. Although rigorous population estimates believe that tree voles did not once Descriptions of historical search cannot be determined from these data, occur there given the presence of efforts for red and Sonoma tree voles the evidence suggests that red tree voles historical habitat (see Range and indicate that once the species’ behavior are now much less abundant within the Distribution). There is a gap in the and life history were understood, DPS than they were historically. distribution of tree vole specimens and searchers were more successful in nests south of Saddle Mountain State finding tree voles, often with little Habitat loss appears to at least partly Park in south-central Clatsop County, difficulty. Observers typically noted the explain the apparent reduction in tree through the eastern two-thirds of patchy distribution of voles, and once vole numbers, both rangewide and Tillamook County south to the town of they found voles, they tended to readily within the DPS. As an example, many Tillamook (Forsman et al. 2009b, p. find multiple nests and voles in the researchers have noted a continual 229). There are no historical records of same area (Taylor 1915, pp. 140–141; decrease in both habitat and numbers of voles collected in this area, but there is Howell 1926, pp. 42–43; Clifton 1960, Sonoma tree voles near Carlotta, also no evidence that early naturalists pp. 24–30; Maser 1966, pp. 170, 216– California, from 1913 through 1977 searched this area for tree voles. This 217; Maser 2009, pers. comm.; Forsman (Howell 1926, p. 43; Benson and Borell gap in the range corresponds roughly and Swingle 2010, p. 104). For example, 1931, p. 226; Zentner 1966, p. 45). with the area of the Tillamook burn, a Clifton (1960, pp. 24–30) averaged one Specific to the North Oregon Coast DPS, stand-replacing fire that burned over day searching for every red tree vole Forsman and Swingle (2009, pers. 300,000 acres (121,400 ha) in 1933 ‘‘colony’’ found near Newberg, Oregon, comm.) noted the reduction or loss of (Pyne 1982, pp. 330–331). This area and Howell described more than 50 habitat in areas where tree voles reburned in three successive fires over Sonoma tree voles being collected over historically occurred; habitat loss the next 18 years, for a combined total 2 days near Carlotta, California in 1913 seemed especially prominent in coastal burn area of 350,000 acres (141,650 ha) (Howell 1926, p. 43). areas and along the Willamette Valley (Pyne 1982, pp. 330–331). It is In contrast, between 2002 and 2006, margin, where Forsman and Swingle reasonable to conclude that voles were Forsman and Swingle (2006, (2009, unpublished data; 2009, pers. present in this area prior to the fire, unpublished data) spent 1,143 person- comm.) observed that some historical considering that much of the burned hours searching potential vole habitat in collecting sites had since been logged area contained older forest similar to or near areas where voles historically and found fewer voles than were forests occupied by tree voles in areas occurred in or immediately adjacent to historically collected from these areas. adjacent to the burn. the DPS and captured or observed only The apparently significant decline in Extensive surveys done throughout 27 voles, equating to 42 hours of search tree vole abundance within the North the range of the red tree vole as part of effort per vole found. Although a Oregon Coast DPS of the red tree vole the NWFP Survey and Manage program rigorous quantitative comparison cannot appears to correspond with the have resulted in information that has be made between recent and historical extensive historical loss of the older helped to refine the distribution of the observation data, the above anecdotal forest type that provides the highest red tree vole (USDA and USDI 2000a, p. information indicates that tree vole quality habitat for the red tree vole, as 376; USDA and USDI 2007, pp. 289– numbers are greatly reduced in the well as the ongoing harvest of timber on 290). Information gleaned from these DPS—red tree voles are now scarce in short rotation schedules that maintains more recent surveys indicate that tree the same areas where they were once the remaining forest in lower quality voles continue to be widely distributed found with relative ease. Similarly, early seral conditions in perpetuity. In
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addition, continuing timber harvest in of structural complexity) on Federal timber harvest, was the biggest cause, younger forest areas adjacent to lands in the NWFP during the first 10 with fires accounting for a small portion remaining patches of older forest years of its implementation. However, of the loss (Wimberly and Ohmann diminishes the habitat quality of these more recently, better data and analysis 2004, pp. 643–644). Between 1972 and stands by maintaining them in an methods have indicated that in fact 1995, timber clearcut harvest rates in all isolated and fragmented condition that there has been a slight net decline in stand types were nearly three times may not allow for persistent populations older forest on Federal lands between higher on private land (1.7 percent of of red tree voles. 1994 and 2007. Specifically on Federal private land per year) than public land Landscapes in the Oregon Coast lands in the Oregon Coast Range, older (0.6 percent of public land per year), Range have become increasingly forest has declined from 44.2 percent to with the Coast Range dominated by fragmented and dominated by younger 42.9 percent (Moeur et al. 2010a, private industrial ownership and having patches of forest, as old and mature Figure 1). the greatest amount of timber harvest as forests have been converted to younger There is some indication that compared to the adjacent Klamath stands through anthropogenic alteration managed second-growth forests are not Mountain and Western Cascades (Wimberly et al. 2000, p. 175; Martin developing characteristics identical to Provinces (Cohen et al. 2002, pp. 122, and McComb 2002, p. 255; Wimberly natural late-successional forests, and 124, 128). Within the Coast Range, there 2002, p. 1322; Wimberly et al. 2004, p. that second-growth forests and clearcuts has been a substantial shift in timber 152; Wimberly and Ohmann 2004, pp. exhibit reduced diversity of native harvest from Federal to State and 631, 635, 642). The historical loss of mammals typically associated with old- private lands since the 1980s, with an large contiguous stands of older forest growth forest conditions (Lomolino and 80 to 90 percent reduction in timber has manifested in the current primary Perault 2000, pp. 1526, 1529). The harvest rates on Federal lands (Azuma threats to the North Oregon Coast DPS historical losses of late-successional et al. 2004, p. 1; Spies et al. 2007b, p. of the red tree vole of insufficient forest and ongoing management of most 50). habitat, habitat fragmentation, and forests on State, County, and private More than 75 percent of the future isolation of small populations; these lands for harvest on a short-rotation tree harvest is expected to come from threats are addressed under Factor E, schedule have resulted in the private timberlands (Johnson et al. 2007, below. Here we address the effects of destruction of the older forest habitats entire; Spies et al. 2007b, p. 50) and varying levels of ongoing habitat loss favored by red tree voles; these older modeling of future timber harvests over and modification in the North Oregon forest habitats now persist largely in Coast DPS of the red tree vole. We first small, isolated fragments across the the next 50 years indicates that current provide some background on the DPS. Because of the historical loss of harvest levels on private lands in historical environmental conditions in older forest stands, the remaining western Oregon can be maintained at the DPS, as this provides important habitat now contains forests in earlier that rate (Adams and Latta 2007, p. 13). context for understanding the effects of seral stages, which provide lower- Loss and modification of tree vole ongoing timber harvest on the habitat of quality habitat for red tree voles. The habitat within the northern Oregon the red tree vole. ongoing management of much of the Coast Range is thus expected to forest within the DPS for timber harvest continue, albeit at a lower rate on State Modification of Oregon Coast Range on relatively short rotation schedules, and Federal lands compared to private Vegetation particularly on State, County, and lands (see discussion under Factor D, Within the Oregon Coast Range private lands, contributes to the ongoing below). However, even on Federal Province, the amount of forests that modification of tree vole habitat by lands, which provide the majority of have the type of structure and maintaining forests in low quality remaining suitable habitat for red tree composition favored by red tree voles condition; most of the younger forest voles within the DPS, some timber has experienced significant loss over the types within the DPS are avoided by harvest is expected to continue in those past century, primarily due to timber tree voles for nesting. Although younger land allocations where allowed under harvest. While the total area of closed forests may provide important interim their management plans. Although some canopy forest remained fairly stable or dispersal habitats for red tree voles, forms of harvest may not exert a from 1936 to 1996, major shifts have it is unlikely that forests lacking the significant negative impact on red tree occurred in the distribution, age, and complexity and structural voles if managed appropriately (for structure of these forested cover classes. characteristics typical of older forests example, thinning in Late-Successional Most germane to red tree voles, there can support viable populations of red Reserves (LSRs) or Late-Successional has been a change from a landscape tree voles over the long term. These Management Areas (LSMAs) with the dominated by large conifers with concepts are explored further in the goal of enhancing late-successional quadratic mean tree diameters greater section, Continuing Modification and characteristics over the long term), lands than or equal to 20 in (51 cm) to a Current Condition of Red Tree Vole in the Timber Management Area (TMA) landscape dominated by smaller Habitat, below. and Matrix allocation are intended for conifers. Specifically, the percent cover multiple uses, including timber harvest. of large conifers in the Coast Range Habitat Loss From Timber Harvest As an example, since the inception of Province declined from 42 percent in In their analysis of forest trends, the NWFP, 55 percent of the timber 1936 to 17 percent in 1996 (Wimberly Wimberly and Ohmann (2004, p. 643) harvest on BLM lands within the DPS and Ohmann 2004, p. 631). On Federal found that land ownership had the came from the Matrix allocation, 20 lands, timber harvest has declined greatest influence on changes in forest percent from Adaptive Management substantially since the inception of the structure between 1936 and 1996, with Areas (AMAs), and 25 percent came NWFP in 1994 (Spies et al. 2007a, p. 7). State and Federal ownership retaining from LSRs both within and outside the Moeur et al. (2005, pp. 95–100) even more large-conifer structure than private AMA (BLM 2010, unpublished data). showed a 19 percent increase in older lands. Loss of large-conifer stands to These numbers do not include harvest forests (minimum quadratic mean development was not considered a within Riparian Reserves, which overlay diameter 20 in (51 cm) and canopy primary cause of forest type change. all land allocations. Within the DPS, cover greater than 10 percent, regardless Instead, loss to disturbance, primarily approximately 156,844 ac (63,475 ha)
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are in the Matrix and TMA allocations, presence (Po) from 0 to 1; the larger voles tend to strongly select for (Figure combined. values of Po (e.g., 0.9 or 0.8) represent 3). This is based on evaluation of the a greater probability of nest presence FIA plots, comparing those with the Continuing Modification and Current and correlate to presumed higher Condition of Red Tree Vole Habitat lowest probability of selection by tree quality habitat. Based on their model voles for nesting (lowest 20 percent of The loss of much of the older forest results, Dunk and Hawley (2009, p. 630) probability classes; nearly 87.3 percent within the DPS has reduced high- considered a Po of greater than or equal of FIA plots across all landownerships quality habitat for tree voles to relatively to 0.25 as likely having presence of a within the DPS were in this condition) small, isolated patches; these conditions tree vole nest in an FIA plot; a Po of less with those with the greatest strength of pose a significant threat to red tree than 0.25 was considered as not likely selection (highest 20 percent of voles, which are especially vulnerable to have a tree vole nest. The Po cutoff probability classes; 0.3 percent of FIA to the effects of isolation and point of 0.25 represents the value that plots across all landownerships were in fragmentation due to their life-history achieved the highest correct this condition). Assuming that tree voles characteristics (see Factor E, below). classification of occupied and non- exhibit the strongest selection for the Tree voles are naturally associated with occupied sites while attempting to highest quality habitats, this translates unfragmented landscapes, and are reduce the error of misclassifying plots into roughly 11,605 ac (4,700 ha) of considered habitat specialists that select that actually had nests as plots without high-quality habitat remaining for red areas of contiguous mature forest; they nests; plots with Po greater than 0.25 are tree voles distributed across a DPS are not adapted to fragmented assumed to represent suitable tree vole roughly 3.8 million ac (1.6 million ha) landscapes and early seral habitat habitat. Based on this assumption that a in size. Furthermore, although some patches (Martin and McComb 2002, p. Po value of 0.25 represents suitable tree 262). At present and for the foreseeable nests may have been missed during tree vole habitat, Dunk (2009, pp. 4, 7) found vole surveys, the nest estimates used by future, however, much of the remaining that 30 percent of the plots on Federal forest on State and private lands in the Dunk and Hawley (2009, entire), and lands within the DPS had suitable subsequently applied by Dunk (2009, North Coast Range DPS is managed for habitat, but only 4 and 5 percent of the timber production, as are lands within entire), likely overestimate probable tree plots on private and State lands within vole occupancy for two reasons. First, the Matrix and TMA allocations of the the DPS, respectively, had suitable occupied sites were based on locations Federal lands (see Factor D below). habitat. Across all landownerships in of tree vole nests, and as explained Managing for timber production either the DPS collectively, 11 percent of the earlier, the presence of nests, even those removes existing habitat or prevents plots had potentially suitable habitat for classified as ‘‘active,’’ do not necessarily younger stands from developing into red tree voles. Thus within the DPS, equate to tree vole occupancy. Second, suitable habitat due to short harvest there is relatively little suitable habitat the analyses were based on plot-level rotations. Remaining older forest habitat remaining for the red tree vole, and this data at the scale of less than 2.5 ac (1 tends to be in small, isolated patches suitable habitat is largely restricted to ha). The distribution of tree vole habitat (see Factor E below); we consider such Federal lands. State and private lands, and effects of habitat fragmentation, forest conditions to provide poor habitat which comprise the majority of the DPS for the red tree vole and unlikely to (78 percent of the land area), provide connectivity, and possible sustain the species over the long term. little suitable habitat for tree voles. metapopulation dynamics may also Although some State land and much of Dunk and Hawley (2009, p. 631) also influence the presence of tree voles on the Federal ownership is managed for compared red tree vole usage of forest a site such that a 2.5 ac (1 ha) plot of development or maintenance of late- types with their proportional highly suitable habitat isolated from successional habitat or old-forest availability on the landscape; this is an other suitable habitat is less likely to structure conditions, active management important measure of habitat selection contain or sustain tree voles than such as thinning activities are allowed by the species. If red tree voles do not connected stands (Dunk 2009, p. 9). and encouraged to develop the desired select for any particular forest type Thus, its actual likelihood of occupancy stand conditions. However, thinning condition, we would expect usage of may be lower than predicted by the stands occupied by tree voles can different forest types to be proportional model due to its landscape context. The reduce vole numbers or eliminate them to their availability. If a forest type is sample patch size used by Dunk (2009, (see below). used less than expected based on its entire) is less than the 5–10 acres (2–4 The most comprehensive analysis of availability, that is assumed to represent ha) in which Hopkins (2010, pers. current red tree vole habitat conditions selection against that forest type; in comm.) found nests of tree voles and specific to the North Coast Range DPS other words, the species avoids using substantially less than the minimum is a report by Dunk (2009, entire). Dunk that forest type, even though it is forest stand size of 75 ac (30 ha) in (2009, p. 1) applied a red tree vole available. If a forest type is used more which individual tree voles have been habitat suitability model (Dunk and than expected based on availability, that found (Huff et al. 1992, p. 7). Whether Hawley 2009, entire) to 388 Forest is assumed to represent selection for either of these minimum patch sizes can Inventory Analysis (FIA) plots that forest type; the species is seeking sustain a population of red tree voles systematically distributed on all out that forest type, despite the fact that over the long term is unknown and is ownerships throughout the DPS (the it is less readily available. The forest influenced by such things as habitat FIA is a program administered by the type that tree voles select is assumed to quality within and surrounding the USDA Forest Service, and is a national be suitable habitat. stand, position of the stand within the scientific inventory system based on Combining the strength of selection landscape, and the ability of individuals permanent plots designed to monitor analysis done by Dunk and Hawley to move among stands (Huff et al. 1992, the status, conditions, and trends of U.S. (2009, p. 631) with the current habitat p. 7; Martin and McComb 2003, pp. forests). FIA plots are resampled every condition in the DPS based on FIA data, 571–579). Given the conservative 10 years to monitor changes in forest almost 90 percent of the DPS is in a assumptions of the model, the amount vegetation. The red tree vole habitat forest type condition that red tree voles of remaining likely suitable habitat suitability model estimates the tend to avoid, while only 0.3 percent of within the DPS reported by Dunk (2009, probability of red tree vole nest the DPS is in a forest type that red tree entire) may represent a best-case
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scenario, and the amount of remaining habitat suitable for red tree voles is likely less than estimated here. BILLING CODE 4310–55–P
BILLING CODE 4310–55–C Physiographic Province of Oregon divisions of areas of distinctive Spies et al. (2007b, entire) modeled (physiographic provinces are geographic topography and geomorphic structure). red tree vole habitat in the Coast Range
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Their results indicated that tree vole allowing dispersal and short-term suitable habitat to voles is unclear, they habitat currently makes up almost 50 persistence in landscapes where older may provide some value in otherwise percent of the province, with just under forests are either isolated in remnant denuded landscapes, and thinning half of that habitat occurring on private patches or have been largely eliminated treatments in these stands have the lands (Spies et al. 2007a, p. 10, Figure (Swingle 2005, p. 94). The presence of potential to further reduce vole 2). While this assessment of the current individuals within a particular habitat numbers, especially if thinning design condition of tree vole habitat in coastal condition does not necessarily mean the does not account for structural features Oregon differs from Dunk (2009, entire), habitat is optimal, and individuals may and the connectivity of those features we believe Dunk to be a more accurate be driven into marginal habitat if it is all that are important to red tree voles description of red tree vole habitat in that is available (Gaston et al. 2002, p. (Swingle and Forsman 2009, p. 284). the DPS and rely more heavily on that 374). Swingle and Forsman (2009, Swingle (2005, pp. 78, 94), however, work for the following reasons. Dunk’s entire) found radio-collared tree voles in cautions against using the occasional analysis is specific to the DPS, whereas young stands throughout the year, but presence of tree voles in young forests the Coast Range Physiographic occupancy of younger stands appears to to refute the importance of old forest Province, which includes the DPS, be short-term or intermittent (USDA and habitats to tree voles. covers an additional 1.8 million acres USDI 2000a, p. 378; Diller 2010, pers. In summary, whether red tree voles in (728,000 ha) extending to the south of comm.; Hopkins 2010, pers. comm.). younger forests can persist over long the DPS. Second, Spies et al. (2007b, p. There are few data on survival of tree periods or are ephemeral populations that contribute little to overall long-term 51, Appendix D) assessed tree vole voles in younger stands. The only study population viability remains unknown habitat by developing habitat capability conducted to date suggested no at this time (USDA and USDI 2007, p. index models that reflect habitat difference in annual survival of tree 291). However, the recent work of Dunk characteristics important for survival voles in young (22–55 years) and old (2009, entire) and Dunk and Hawley and reproduction based on literature (110–260 years) stands, but the authors (2009, entire) indicate that red tree voles and expert opinion. The variables they cautioned that their sample sizes were display strong selection for forests with used were restricted to existing small and had low power to detect late-successional structural geographic information system layers effects (Swingle 2005, p. 64; Forsman characteristics. that could be projected into the future and Swingle 2009, pers. comm.). using forest dynamics models. They Although the role of younger forest is Thinning younger stands occupied by uncertain, based on our evaluation of were not able to empirically verify their tree voles can reduce or eliminate voles red tree vole habitat capability index the best available scientific data, as from these stands (Biswell 2010, pers. described above, we conclude that older model with independent data, although comm.; Swingle 2010, pers. comm.), and forests are necessary habitat for red tree it was reviewed by two published Carey (1991, p. 8) suggests activities that voles and that younger stands will experts. Dunk’s analysis (2009, entire) result in rapidly developing (changing, rarely substitute as habitat in the relied on the red tree vole habitat model unstable) younger forests are a limiting complete or near absence of older described in Dunk and Hawley (2009, factor for red tree voles. Conversely, stands. While some State land and entire), which was empirically when vole nests classified as occupied much of the Federal ownership is developed based on presence or absence (based on indication of activity such as managed for development or of red tree vole nests in FIA plots on presence of fresh green resin ducts) maintenance of late-successional habitat Federal lands throughout most of the were protected with a 10-acre buffer or old-forest structure conditions, full tree vole range. Dunk (2009, entire) then zone during thinning treatments, development of this habitat has yet to applied that model to FIA plots across Hopkins (2010, pers. comm.) continued occur (see below). In addition, thinning all ownerships within the DPS to to find signs of occupancy at these nests activities designed to achieve these describe current tree vole habitat post-treatment, although signs of objectives can reduce or eliminate tree distribution based on existing field data. occupancy were intermittent through voles from these stands. The ongoing As noted earlier, although red tree time. However, Hopkins’ (2010, pers. management of forests in most of the voles are widely considered habitat comm.) results are subject to the North Oregon Coast DPS for the specialists strongly associated with limitations of using the presence or purposes of timber production thus older forests, they may also be found in absence of green resin ducts to contributes to the threat of habitat younger stands (Maser 1966, pp. 216– determine the activity status of nests modification for the red tree vole, as 217; Thompson and Diller 2002, p. 95; (see the beginning of Factor A, above). forest habitats are prevented from Swingle and Forsman 2009, pp. 278, Red tree voles may ultimately come attaining the high-quality older forest 284), which are much more abundant in back to a treated stand, but how long it characteristics naturally selected by red the DPS. Although some have suggested will be after the treatment before the tree voles and are maintained in a low- that these young forests may be stand is reoccupied is unknown. If and quality condition for red tree voles in population sinks (Carey 1991, p. 34), the when tree voles return likely depends the DPS. Our evaluation of the role of younger stands in tree vole on a multitude of factors including remaining older forest patches within population dynamics is unclear. Tree magnitude, intensity and frequency of the DPS indicate they are likely voles in young stands may represent the treatment within the stand, type and insufficient to sustain red tree voles attempts of emigrants to establish amount of structure left after treatment over the long term due to their relatively territories, or may be residual (e.g., large trees), and whether or not small size and isolated nature (see populations that tolerate habitat there is a refugium or source population Factor E, below). disturbance (USDA and USDI 2000a, p. nearby that is available to supply voles 378). It is possible that some young for recruitment when the treated stand Projected Trends in Red Tree Vole stands are on unique microsites where becomes suitable again (Biswell 2010, Habitat tree voles are able to reinvade and pers. comm.; Forsman 2010, pers. Implementing current land persist in the developing stands comm.; Hopkins 2010, pers. comm.; management policies in the Coast Range (Forsman 2010, pers. comm.). Younger Swingle 2010, pers. comm.). Thus, Province is projected to provide an stands may also be important for while the value of younger stands as increase (approximately 20 percent) in
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red tree vole habitat over the next 100 nature of public lands in the northern Federal lands with the highest quality years, primarily on Federal and State Oregon Coast Range suggests that a habitats, suggests that any future gains lands (Spies et al. 2007b, p. 53). potential gain of 20 percent more are likely not sufficient to offset the Vegetation simulations indicate that suitable habitat 100 years from now is present threat of habitat loss, private industrial timber lands will likely not sufficient to offset the loss, modification, or fragmentation, and its generally be dominated by open and modification, and fragmentation of ongoing contribution to the isolation of small- and medium-sized conifer habitat and isolation of populations that red tree voles in the DPS. forests. Old forest structure and habitat collectively pose an immediate threat to Summary of Factor A will strongly increase on Federal and the red tree vole in the DPS. The North Oregon Coast DPS of the State lands, and large, continuous Loss of forest land to development is red tree vole is threatened by the effects blocks of forest will increase primarily projected to occur in 10 percent of the of both past and current habitat loss, on Forest Service and State lands Coast Range Province, and would most including ongoing habitat modification (Johnson et al. 2007, pp. 41–42). The likely occur on non-industrial private that results in the maintenance of poor estimate of older forests on State lands, lands, near large metropolitan areas, and quality forest habitats and insufficient however, may be a substantial along the Willamette Valley margin older forest habitats, addressed here, overestimate because the analysis was (Johnson et al. 2007, p. 41; Spies et al. and habitat fragmentation and isolation not able to fully incorporate the 2007a, p. 11). Although timber of small populations, addressed under complexity of the State forest production in the Coast Range has Factor E. Most of the DPS, nearly 80 management plan (Johnson et al. 2007, shifted by ownership class, declining on percent, is in State, County, and private p. 43; Spies et al. 2007a, p. 11). In Federal lands and increasing on private ownership, and most of the forested addition, the Oregon Department of lands, overall production is projected to areas are managed for timber Forestry (ODF) has since reduced the stay at recent harvest levels. Actual production. Ongoing timber harvest on targeted level of old forest to be production may result in levels higher a short rotation schedule over most of developed in northwestern Oregon than projected because harvest levels this area maintains these forest habitats forests (ODF 2001, p. 4–48; 2010c, p. 4– estimated for private industrial in a low-quality condition, preventing 48). Yet even with the projected timberland were conservative (Johnson these younger stands from developing increase, the amounts of old forest will et al. 2007, pp. 42–43) and timber the older forest conditions most suitable not approach historical levels estimated production on State lands may be for red tree voles. Although the role of to have occurred over the last 1,000 underestimated by 20 to 50 percent younger forest stands is not entirely years in the Coast Range Province (Spies (Johnson et al. 2007, p. 43). Johnson et clear, we conclude the preponderance of et al. 2007a, pp. 10–11), and these al. (2007, pp. 45–46) described several the best available information suggests blocks of restored older forest will key uncertainties that were not that red tree voles are habitat specialists continue to be separated by forests in accounted for in their projections of strongly associated with unfragmented earlier seral stages on private lands. future trends in the Coast Range that forests that exhibit late-successional Although restoration of Oregon Coast could potentially affect their results. characteristics; while younger forests Range forests to historical levels of older These uncertainties include: effects of may play an important role as interim forest conditions is not requisite for the climate change; recently adopted or dispersal habitat, older forests are conservation of red tree voles, we have initiatives that may result in an required to maintain viable populations no evidence to suggest the present increased loss of forest land to cities, of red tree voles over the long term. The dearth of suitable habitat for the red tree towns, and small developments; a ongoing management of forests in the vole will be alleviated by the modest possible decrease in global North Oregon Coast DPS for the projected increases in older forest competitiveness of the Coast Range purposes of timber harvest thus conditions on Federal and State lands forest industry; sales of industrial contributes to the threat of habitat within the DPS. Even though the forests to Timber Management modification for the red tree vole, as amount of suitable habitat on public Investment Organizations that may forest habitats are prevented from lands may eventually increase, these result in a shift of land use to other attaining the high-quality older forest patches of suitable habitat will remain types of development; the effects of characteristics naturally selected by red fragmented due to landownership Swiss needle cast on the future of tree voles and are maintained in a low- patterns and associated differences in plantation forestry; and effects of quality condition for red tree voles in management within the DPS. wildfire. Most of these scenarios would the DPS. Furthermore, the time required for stand result in a loss of existing or potential Factors that hinder the development development to achieve these improved tree vole habitat, contributing further to and maturation of younger forest stages conditions, 100 years, is substantial; the present loss, modification, into late-successional forest conditions whether these gradual changes will fragmentation, and isolation of habitat contribute to the ongoing modification occur in time to benefit the red tree vole for the red tree vole within the DPS, of suitable habitat and maintain the in the North Oregon Coast DPS is although the magnitude of that loss is present condition of insufficient unknown. However, we anticipate that uncertain. In conclusion, while modest remaining older forest habitat for the red any patches of suitable habitat that may increases in tree vole habitat are tree vole in the DPS. The persistence be found on public lands within the expected to occur in the Oregon Coast and development of high-quality tree DPS 100 years from now will continue Range over the next century, they are vole habitat over the next century under to be fragmented and isolated, due to limited primarily to Federal lands and, existing management policies is likely the management practices on to some lesser degree, State lands, to occur primarily on Federal lands, and intervening private lands that inhibit although the amount of older forests on to a lesser degree on State lands. connectivity. Thus, although projected State lands may be an overestimate. As However, as Federal lands make up less future conditions represent a potential described above, the time lag in than a quarter of the area of the DPS, improvement in suitable habitat for the achieving this potential increase in even with eventually improved red tree vole, the time lag in achieving suitable habitat and the fragmented conditions, suitable red tree vole habitat these conditions and the fragmented nature of public lands, especially those will remain restricted in size and in a
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fragmented, isolated condition for the as Alex Walker, Murray Johnson, Doug Factor B. Overutilization for foreseeable future. In the interim, Bake, Chris Maser, and Percy Clifton Commercial, Recreational, Scientific, or thinning activities designed to (Forsman 2009, pers. comm.). Although Educational Purposes accelerate the development of late- standardized quantitative data are not We are not aware of any information successional forest structure conducive available to rigorously assess population that indicates that overutilization for to tree vole habitat may reduce or trends of red tree voles, we believe it is commercial, recreational, scientific, or eliminate local populations for an reasonable to conclude that, based on educational purposes threatens the undetermined amount of time. information from retrospective surveys continued existence of the North Oregon Declines in the amount of older forest of historical vole collection sites, red Coast DPS of the red tree vole and have within the Coast Range Province are tree voles have declined in the DPS and determined that this factor does not unprecedented in recent history no longer occur, or are now scarce, in (Wimberly et al. 2000, pp. 176–178). pose a significant threat to the viability areas where they were once relatively This decline has translated into of the North Oregon Coast DPS of the substantial habitat loss for red tree abundant. Loss of habitat in the DPS, red tree vole. primarily due to timber harvest, has voles, with only 11 percent Factor C. Disease or Predation (approximately 425,000 ac (173,000 ha)) been substantial and has probably been We are not aware of any information of the nearly 4 million acres (1.6 million a significant contributor to the apparent that indicates that disease threatens the ha) within the DPS boundary assumed decline in tree vole numbers. Current North Oregon Coast DPS of the red tree to be potentially suitable habitat (Dunk management practices for timber vole, now or in the foreseeable future. 2009, p. 5). Most of this suitable habitat production, particularly on the State, With respect to predation, the red tree is restricted to Federal lands that lie in and privately-owned lands that two discontinuous clusters within the comprise the vast majority of the DPS, vole is prey for a variety of mammals DPS. State and private lands, which keep the majority of the remaining forest and birds (see above under Mortality), collectively comprise nearly 80 percent habitat from maturing and developing although voles persist in many areas of the DPS area, provide very little the late-successional characteristics that despite the large numbers of predators suitable habitat; roughly 4 to 5 percent comprise highly suitable habitat for red (Forsman et al. 2004, p. 300). However, barred owls have recently expanded of the State and private lands are tree voles. Current management for into the Pacific Northwest and are a considered potentially suitable habitat timber harvest thereby contributes to the relatively new predator of red tree voles. for red tree voles (Dunk 2009, pp. 6–7). ongoing modification of tree vole Although a recent pellet study indicates Nearly 90 percent of the DPS is habitat, as well as the fragmented and currently in a habitat condition avoided that barred owls occasionally prey on isolated condition of the remaining tree voles (Wiens 2010, pers. comm.), by red tree voles, and only 0.3 percent limited older forest habitat for the of the DPS is in a condition for which the long-term effects of this new species. Indications are that the predator are uncertain. Barred owls red tree voles show strong selection for remaining older forest patches are likely nesting (Dunk 2009, p. 7). Given that have a more diverse diet than northern too small and isolated to maintain red nest presence does not correspond spotted owls, an established tree vole tree voles over the long term (see Factor exactly with vole presence, and that the predator (Courtney et al. 2004, p. 7–40). E, below). The biology and life history FIA sampling design may include While the varied diet of the barred owl habitat that is unavailable to tree voles, of red tree voles render the species may potentially limit their pressure as this is likely an overestimate of especially vulnerable to habitat predators on tree voles, the fact that potential red tree vole habitat. Although fragmentation, isolation, and chance they outnumber spotted owls in the Federal lands offer some protection and environmental disturbances such as southern portion of the DPS by a 4:1 management of red tree vole habitat, large-scale fires that could reasonably be ratio (Wiens 2010, pers. comm.) may indications are that there may not be expected to occur within the DPS increase that pressure. Whether enough habitat in suitable condition to within the foreseeable future (Martin predation on red tree voles may support red tree voles north of U.S. and McComb 2003, p. 583; also significantly increase as a result of Highway 20. In this area of the DPS addressed in Factor E). Based on our growing numbers of barred owls is Federal land is limited, connectivity evaluation of present and likely future unknown. Therefore, we cannot draw between blocks of Federal land is habitat conditions, we conclude that the any conclusions as to the impact of restricted, and there are few known vole ongoing effects of the destruction, barred owl predation on red tree voles sites currently available to potentially modification, and curtailment of its in the DPS at this time. recolonize habitat as it matures into habitat, in conjunction with other Conclusion for Factor C suitable condition. Surrounding private factors described in this finding, pose a timber lands are not expected to provide significant threat to the persistence of While predators undoubtedly have long-term tree vole habitat over the next the North Oregon Coast DPS of the red some effect on annual fluctuations in century, and projections of suitable tree tree vole. tree vole numbers, there is no evidence vole habitat on State land may be to suggest that changes in predation We have evaluated the best available overestimates. rates have caused or will cause long- scientific and commercial data on the term declines in tree vole numbers. Tree Conclusion for Factor A present or threatened destruction, voles are exposed to a variety of Recent surveys at locations within the modification, or curtailment of the predators and as a prey species they DPS where voles were readily captured habitat or range of the North Oregon have adapted traits that reduce their 30 to 40 years ago have resulted in Coast DPS of the red tree vole, and exposure and vulnerability to predation; significantly fewer voles captured per determined that this factor poses a examples include cryptic coloration and unit of survey effort compared to significant threat to the continued leaping from trees when pursued (Maser historical collections. This suggests that existence of the North Oregon Coast et al. 1981, p. 204), or minimizing the tree vole numbers have declined in DPS of the red tree vole, when we duration of individual foraging bouts many areas where voles were once consider this factor in concert with the outside of the nest (Forsman et al. readily obtained by early collectors such other factors impacting the DPS. 2009a, p. 269). While habitat alterations
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may affect the exposure and tree voles on private timberlands in timber harvest may still occur (section vulnerability of tree voles to predators Oregon. 6 of OAR 629–640–0100 and section 7 (see above under Mortality), predators Per the Oregon Revised Statute, an of OAR 629–640–0200). In addition, themselves do not appear to be a average of two snags or green trees per basal area credits may be granted, upon principal threat affecting long-term ac (0.8 per ha) greater than 30 ft (9 m) approval, for other stream trends in red tree vole numbers. We tall and 11 in (28 cm) diameter are enhancements, such as placing downed therefore conclude that the continued required to be left in harvest units logs in streams to enhance large woody existence of the red tree vole in the greater than 25 ac (10 ha) (ORS debris conditions (OAR 629–640–0110). North Oregon Coast DPS is not 527.676); up to half of these trees may Thus, while basal area credits may threatened by disease or predation, nor be hardwoods. Retention buffers are produce in-stream enhancements, they is likely to become so. required around northern spotted owl simultaneously reduce potential We have evaluated the best available nest sites (70 ac (28 ha) of suitable arboreal habitat for red tree voles. scientific and commercial data on the habitat) (OAR 629–665–0210), bald Given the extensive network of effects of disease or predation on the eagle nest sites (330-ft (100-m) buffer) streams within the Coast Range, riparian North Oregon Coast DPS of the red tree (OAR 629–665–0220,), bald eagle roost management areas appear to have vole, and determined that this factor sites (300-ft (100-m) buffer) (OAR 629– potential in providing connectivity does not pose a significant threat to the 665–0230), and great blue heron nest habitat for red tree voles between large viability of the North Oregon Coast DPS sites (300-ft (91-m) buffer) (OAR 629– patches of remnant older forest stands. of the red tree vole. 665–0120). In addition, foraging trees However, given the minimum tree used by bald eagles (OAR 629–665– retention sizes and numbers prescribed Factor D. Inadequacy of Existing 0240) and osprey nest trees and under the OAR, we believe them to be Regulatory Mechanisms associated key nest site trees (OAR 629– insufficient to provide adequate habitat Timber harvest has been identified as 665–0110) are also protected from to sustain populations of red tree voles, the primary cause of vegetation change timber harvest. In all cases, protections and likely not sufficient to provide and loss of red tree vole habitat in the of these sites are lifted when the site is connectivity between large patches of Oregon Coast Range Province (Wimberly no longer considered active (OAR 629– remnant older forest stands. As an and Ohmann 2004, pp. 643–644) (see 665–0010). example, the streamside rules applying Factor A discussion, above). Although Within the Coast Range, small the most protection apply around fish- most of the losses of late-successional perennial streams that are neither fish bearing streams (sections 5–7 of OAR forest conditions occurred historically, bearing nor a domestic water source 629–640–100). Although these sections these losses, combined with current have no tree retention requirements. require retention of 40 live conifer trees management of younger forests on both With respect to all other perennial per 1,000 ft (305 m) along large streams, private and public lands, contribute to streams, no harvest is allowed within 20 and 30 live conifer trees along medium the ongoing modification, curtailment, ft (6 m). In addition, riparian streams, these trees need only be 11 in fragmentation, and isolation of habitat management areas are established (28 cm) dbh for larger streams and 8 in for the red tree vole in the DPS. The around all fish-bearing streams and (20 cm) dbh for medium streams to inadequacy of existing regulatory large or medium non-fish-bearing count toward these requirements. mechanisms in regard to timber harvest streams; their distances range from 20 to Although these regulatory requirements contributes to these threats. Regulations 100 ft (6 to 30 m) beyond the stream, are stated as minimums, they for timber harvest differ among land depending on the stream size and fish- potentially allow for conditions such ownerships and are explained in bearing status. Within these riparian that the remaining trees will likely be separate sections below. management areas, from 40 to 300 far smaller than those generally utilized Regulatory Mechanisms on Private Land square ft (4 to 28 square m) of basal area by red tree voles, and the remaining must be retained for every 1,000 ft (305 trees may be relatively widely dispersed Private lands make up 62 percent of m) of stream; basal area retention levels along the riparian corridor, thereby the DPS, and over 75 percent of timber depend on stream size, fish presence, impeding arboreal movement. harvest in the Coast Range Province is and type of harvest (OAR 629–640–0100 Furthermore, the purpose of tree expected to come from private forest through 629–640–0400). Trees within retention in riparian management areas lands (Johnson et al. 2007, entire; Spies the no-harvest 20-ft (6-m) buffer count is to retain stream shade, and retaining et al. 2007b, p. 50). The Oregon Forest towards these retention requirements. a minimum number of live conifers is Practice Administrative Rules and To meet the basal area requirement designed to distribute that shade along Forest Practices Act (OAR) (Oregon within the riparian management areas of the stream reach by retaining more, Department of Forestry 2010a, entire) large and medium streams, a minimum smaller trees to meet the basal area apply on all private and State-owned number of live conifers must be retained requirements rather than concentrate lands in Oregon, regulating activities to meet shade requirements. Depending the targeted basal area into a few large that are part of the commercial growing on stream size and fish-bearing status, trees. Consequently, there is little and harvesting of trees, including timber live conifer retention requirements incentive to retain any larger trees harvesting, road construction and range from 10 to 40 per 1,000 ft (305 m) within the riparian management areas. maintenance, slash treatment, of stream, with a minimum size of either Although in general biological reforestation, and pesticide and 8 or 11 in (20 or 28 cm) dbh. If the basal corridors are believed to be beneficial fertilizer use. The OAR provide area requirements are still not met with for the conservation of fragmented additional guidelines intended for the minimum conifer retention, the populations by allowing for genetic protection of soils, water, fish and remainder can be met with trees greater interchange and potential recolonization wildlife habitat, and specific wildlife than 6 in (15 cm); a portion of this (e.g., Bennett 1990, entire; Fahrig and species while engaging in tree growing retention can be met with snags and Merriam 1994, p. 51; Rosenberg et al. and harvesting activities. The red tree hardwoods (excluding red alder (Alnus 1997, p. 677), possible disadvantages vole is not one of the specific species rubra)). For all streams where the pre- may include potential increases in provided for in the OAR, and we are not harvest basal area of the riparian area is predation, parasitism, and invasion of aware of any proactive management for less than the targeted retention level, interior habitats by introduced species
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(e.g., Wilcove et al. 1986, pp. 249–250; tree vole would likely avoid using such red tree vole is not one of the specific Simberloff and Cox 1987, pp. 66–67; areas for movement between remaining species protected by the OAR, and due Yahner 1988, p. 337; Simberloff et al. patches of conifer forest. Observations to its relatively specialized habitat 1992, p. 498). Long, narrow strips of that red tree voles are now apparently requirements and limited dispersal habitat suffer from a high ratio of edge absent from forest stands where they capability, provisions intended to to interior, resulting in ‘‘edge effects’’ historically occurred indicate riparian conserve habitat for other wildlife such as altered microclimates and management areas are likely not species are likely inadequate to provide potentially increased vulnerability to functioning as successful corridors for for the conservation of the red tree vole. generalist predators (Yahner 1988, p. dispersal and recolonization by red tree Despite the incidental benefits provided 337; Saunders et al. 1991, pp. 20–22; voles in the DPS. by protective measures for aquatic Chen et al. 1993, p. 220). In old-growth Although the OAR do not specifically resources and other wildlife, Douglas-fir forests, altered provide protection for red tree voles, management under this regulatory environmental conditions may extend some protections may be afforded to mechanism results in much of the up to 137 m (450 ft) from the forest individuals that are incidentally found habitat for the red tree vole being edge, to the extent that patches less than within buffers retained for sensitive continually modified such that 10 ha (25 ac) in size provide essentially wildlife sites. However, such scattered insufficient high-quality habitat (well- no forest interior habitat (Chen et al. remnants of possible habitat are connected stands with older forest 1992, p. 395). unlikely to protect viable populations characteristics) is maintained, and due to their small size and fragmented The successful use of corridors to remnant older forest patches remain and isolated nature. In addition, these maintain regional populations is highly fragmented and isolated due to protected areas can be logged if the site species-specific (Rosenberg et al. 1997, intensive management in the is no longer occupied by the target p. 683; Debinski and Holt 2000, p. 351), surrounding landscape. We therefore species. The short timber harvest and depends on the spatial conclude that existing regulatory rotations (e.g., in calculating its riparian configuration of the remaining habitat, mechanisms on private land are rule standards, OAR assume 50-year the quality of the corridor habitat, and inadequate to provide for the rotations for even-aged stands, and 25- conservation of the North Oregon Coast the habitat specificity and dispersal year entry intervals for uneven-aged DPS of the red tree vole, as they ability of the species in question management) in the surrounding contribute to threats of habitat (Henein and Merriam 1990, p. 157; landscape further limits the potential for destruction, modification, or Fahrig and Merriam 1994, p. 53; With a well-connected tree vole population. curtailment under Factor A, as well as and Crist 1995, entire; Rosenberg et al. Although tree voles have been found in the threats of habitat fragmentation and 1997, entire). In general, habitat these younger stands, frequent isolation of small populations under specialists with limited dispersal thinnings, larger harvest units, and the Factor E. capabilities, such as the red tree vole, tendency for these large harvest units to have a lower ‘‘critical threshold’’ for aggregate into larger blocks of younger Regulatory Mechanisms on State Land responding to fragmented habitats; such stands that are unlikely to develop into State lands make up 16 percent of the species may experience the red tree vole habitat (Cohen et al. 2002, DPS, totaling just over 600,000 ac environment as functionally p. 131) decrease the likelihood that tree (242,800 ha). Although there are some disconnected even when their preferred voles will persist on industrial private scattered State parks located primarily habitat still comprises nearly half of the timber lands even with protections along the coastal headlands, virtually all landscape (With and Crist 1995, p. 2452; afforded to other species per the OAR. of the State ownership in the DPS is Pardini et al. 2010, p. 6). Reduced Therefore, based on the above land managed by the Oregon survival probability for animals moving assessment, we conclude that existing Department of Forestry (ODF) in the through linear corridors of habitat may regulatory mechanisms on private land Tillamook and Clatsop State Forests, as potentially be offset by large numbers of are inadequate to ameliorate the threat well as other scattered parcels of State dispersers, but for animals with of habitat loss and fragmentation and forest land in the southern half of the relatively low reproductive rates and provide for the conservation of the DPS. State forest lands are to be actively low mobility, such as the red tree vole, North Oregon Coast DPS of the red tree managed, assuring a sustainable timber survival probability may be vole. supply and revenue to the State, compromised under such conditions counties, and local taxing districts (ODF (Martin and McComb 2003, p. 578). Summary of Regulatory Mechanisms on 2010c, pp. 3–2, 3–4 to 3–5). Annual Poor-quality habitat conditions for red Private Land timber harvests projected over the next tree voles in riparian management areas, Private lands comprise more than 60 decade for each of the three State Forest such as from reduced canopy cover, percent of the DPS, and most of the districts within the DPS sum to 181 may reduce their probability of survival projected future timber harvest in the million board feet (422,000 cubic m) in moving through such a patch (Martin Oregon Coast Range is anticipated to (ODF 2009, p. 59; 2011a, p. 69; 2011b, and McComb 2003, p. 577). For come from these lands. The Oregon p. 65). Harvest intensities (annual example, there is some evidence that Forest Practices Administrative Rules harvest per acre of landbase) differ by small mammals may experience and Forest Practices Act (OAR) provide district; harvest intensity for the increased risk and local extinction the current regulatory mechanism for Tillamook District, which comprises events of predation in narrow corridors timber harvest on private lands within half of the State Forest ownership or isolated fragments of habitat (e.g., the DPS. The stated goal of the OAR is within the DPS, is projected at 188 Henderson et al. 1985, p. 103; Mahan to provide for commercial growing and board feet per acre (0.526 and 0.530 and Yahner 1999, pp. 1995–1996). harvesting of trees. The OAR cubic m per ha) per year. The Astoria Although riparian buffers are frequently additionally provide guidelines and Forest Grove Districts project suggested as potential corridors for intended to protect soils, water, and fish substantially higher harvest intensities dispersal, Soule´ and Simberloff (1986, and wildlife habitat, including of 526 and 530 board feet per acre per pp. 33–34) specifically suggest that protection of specific wildlife species, year, respectively. Acreages used to forest interior species such as the red during the course of these activities. The calculate harvest intensity may include
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acres that are not capable of producing to management around marbled are larger than what is required on forest and may be a slight murrelet and northern spotted owl sites, private lands, they still allow for a underestimate. ODF exceeds the protections called for reduction in existing habitat suitability The overarching statutory goal for by the OAR. Spotted owl sites are for red tree voles, with minimum management of State forest lands is to protected by a 250-acre (101-ha) core retention levels not meeting tree vole provide, ‘‘healthy, productive, and area around the nest, maintenance of habitat requirements due to reduced sustainable forest ecosystems that over 500 acres of suitable habitat within 0.7 stand densities and lack of crown time and across the landscape provide mi (1.1 km) of the nest, and 40 percent continuity. a full range of social, economic, and of habitat within 1.5 mi (2.4 km) of the State forests are managed for specific environmental benefits to the people of nest (ODF 2008, 2010b). Currently there amounts of forest structural stages. The Oregon’’ (ODF 2010c, p. 3–12). Common are three owl sites on ODF State Forests objective is to develop 15 to 25 percent School Forest Lands comprise 3 percent within the DPS, and another six in of the landscape into older forest of the northwestern Oregon State adjacent lands wherein buffers from structure (32 in (81 cm) minimum Forests, and they are to be managed to these sites overlap onto ODF ownership diameter trees, multiple canopy layers, maximize income to the Common (ODF 2011, unpublished data). Marbled diverse structural features, and diverse School Fund (ODF 2010c, p. 3–2). To murrelet management areas (MMMA) understory) and 15 to 25 percent into the extent that it is compatible with are established around marbled murrelet layered structure (two canopy layers, these statute-based goals, wildlife occupied sites (ODF 2010d) with the diverse multi-species shrub layering, resources are to be managed in a purpose of retaining habitat function. and greater than 18 in (46 cm) diameter regional context, providing habitats that There are 42 MMMAs within the DPS trees mixed with younger trees) over the contribute to maintaining or enhancing totaling 6,281 acres (2,542 ha), averaging long term (ODF 2010c, p. 4–48). native wildlife populations at self- 150 acres (61 ha), and ranging in size Attainment of these objectives would sustaining levels (ODF 2010c, pp. 3–12, from 13 to 623 acres (5 to 252 ha) (ODF benefit the red tree vole; however, this 3–14). 2011, unpublished data). Sixteen is not the current condition of State The Northwestern Oregon State Forest percent of the MMMA acres occur forests within the DPS, and these Management Plan provides management within terrestrial anchor areas. ODF also desired future conditions are not direction for the State Forests within the applies the OAR protection buffers for projected to be reached for at least 70 DPS (ODF 2010c, p. 1–3). There is no bald eagle nests and roosts, and great years (ODF 2010c, p I–13). At present, specific direction in the ODF blue heron nests (see Regulatory only about 1 percent of the State forests northwestern forest management plan Mechanisms on Private Land above). in northwestern Oregon is currently in recommending or requiring surveys or older forest structure and 12 percent is protecting tree vole sites if they are ODF regulations for fish-bearing in a layered structure condition (ODF found on State lands. ODF personnel are streams provide a 170-ft (52 m) buffer 2003a, pp. 4, 12; ODF 2003b, pp. 4, 16; recording tree vole nest locations as on each side, with no harvest within 25 ODF 2009, pp. 4, 21; ODF 2011a, pp. 6, ancillary information collected during ft (7.6 m), management for mature forest 20, 23; ODF 2011b, pp. 6, 25). While 13 climbing inspections of marbled (basal area of 220 square ft (20 square percent of the State forests is in a murrelet (Brachyramphus marmoratus) m) of trees greater than 11 in (28 cm) complex structure category (old forest nests (Gostin 2009, pers. comm.), but are dbh) between 25 and 100 ft (7.6 and 30 and layered forest structure, combined), not implementing management or m) of the stream, and retention of 10 to only a small subset of this likely conservation measures to known sites 45 conifers and snags per acre (4 to 18 provides tree vole habitat given that beyond recording the nests. per ha) between 100 and 170 ft (30 and only 5 percent of the State land is Red tree voles are, however, one of 52 m) of the stream (ODF 2010c, p. J– considered actual red tree vole habitat several species of concern identified by 7). Large and medium streams that are (Dunk 2009, pp. 5, 7). ODF for which anchor habitats have not fish-bearing have management Given the description provided (ODF been established (ODF 2010c, pp. 4–82 standards similar to fish-bearing streams 2010c, p. 4–48), we estimate the older to 4–83, E–42). Anchor habitats are, except that conifer and snag retention forest structure condition as defined by ‘‘intended to provide locales where levels between 100 and 170 ft (30 to 52 the ODF would generally provide red populations will receive a higher level m) from the stream are reduced to 10 tree vole habitat. However, only some of protection in the short-term until per ac (4 per ha) (ODF 2010c, p. J–8). portion of the layered structure additional suitable habitat is created Management standards for small, condition appears to be suitable tree across the landscape’’ (ODF 2010c, p. 4– perennial, non-fish-bearing streams, as vole habitat, and that is likely to be 82). They are not intended to be well as intermittent streams considered stands with more complexity that are permanent reserves. Terrestrial anchor ‘‘high energy reaches’’ (ODF 2010c, pp. closer in condition to that found in habitats are intended to benefit species J–9—J–10), apply to at least 75 percent stands classed as old forest structure. associated with older forest and interior of the stream reach and include no Thus, stands that currently meet tree habitat conditions, and management harvest within 25 ft (7.6 m), retain 15 to vole habitat requirements on State lands within them will promote the 25 conifer trees and snags per acre (6 to are limited to 5 percent of the development of complex forest structure 10 per ha) between 25 to 100 ft (7.6 to ownership and, given such a low (ODF 2010c, pp. 4–82 to 4–83). Within 30 m) of the stream, and retain 0 to 10 proportion, most likely isolated. the State Forests in the DPS, there are conifer trees and snags per acre (0 to 4 Furthermore, the direction is to actively 11 terrestrial anchor habitat areas per ha) between 100 to 170 ft (30 to 52 manage these landscapes to meet the totaling 40,706 ac (16,474 ha) with a m). Additional management standards targeted forest structure stages via mean size of 3,701 ac (1,498 ha) (ODF also apply within 100 ft (30 m) of thinning activities that promote desired 2011, unpublished data). intermittent streams (ODF 2010c, p. J– structural features. The use of thinning Although the OAR apply on all State 10). Within harvest units, all snags are activities to create stands that may be lands, the ODF may develop additional to be retained, and green tree retention suitable habitat for red tree voles has not site-specific management regulations must average 5 per ac (2 per ha) (ODF been tested; to the extent we can that are potentially more stringent than 2010c, pp. 4–53 to 4–54). Although develop the appropriate structure and those set forth in the OAR. With respect riparian retention levels on ODF lands conditions in the long term, such
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treatments in the surrounding landscape In addition to OAR requirements to managed for some level of continuing over the short term likely further limits provide buffers to protect certain timber harvest. The loss and the potential for a well-connected tree wildlife species, ODF provides modification of red tree vole habitat on vole population in the interim. additional buffers for spotted owls and State lands, compounded by isolation of Meanwhile, tree voles would have to marbled murrelets, as well as additional existing habitat as a result of timber persist in these small patches of suitable retention blocks in the form of terrestrial harvest, continues under existing habitat for decades before more suitable anchor habitats scattered throughout its regulatory mechanisms. In addition, habitat developed. ownership. While these areas provide there are no mechanisms in place to The effects of thinning treatments on for some habitat retention, some are protect existing occupied tree vole sites red tree voles is not well understood. likely too small and most too isolated to outside of retention areas. We therefore Younger stands may be important for provide for a species with limited conclude that existing regulatory allowing dispersal and short-term dispersal ability, such as the red tree mechanisms on State land are persistence of tree voles in landscapes vole. Furthermore, without pre-project inadequate to provide for the where older forests are either isolated in surveys for voles, the species will need conservation of the North Oregon Coast remnant patches or have been largely to serendipitously be in these retention DPS of the red tree vole, as they eliminated (Swingle 2005, p. 94). blocks to be afforded any protections. contribute to threats of habitat Thinning these younger stands, while Occupied vole sites outside these areas destruction, modification, or designed to develop late-successional would be lost with any timber harvest curtailment under Factor A, as well as habitat characteristics in the long term, activity. This precludes the opportunity the threats of habitat fragmentation and has the potential to degrade or remove to potentially reduce isolation and isolation of small populations under tree vole habitat in the short term, provide for additional retention blocks Factor E. especially if thinning design does not elsewhere on the landscape where tree Regulatory Mechanisms on Federal account for structural features and the voles may actually be present, thereby Land connectivity of those features that are improving their dispersal potential. important to red tree voles (Swingle and Because of the small amounts (13 Federal lands comprise 22 percent of Forsman 2009, p. 284). As reported in percent) of complex forest habitat (1 the DPS (851,000 ac (344,400 ha)) and USDA and USDI (2002, p. 13), although percent older forest and 12 percent are concentrated in two separate areas. old, inactive red tree vole nests have layered forest structure) currently The southernmost portion lies between been found in thinned stands and available on State lands throughout the U.S. Highway 20 and the Siuslaw River, shelterwood treatments, no occupied DPS, there is limited ability to maintain and makes up roughly two-thirds of the nests have been found, suggesting that persistent populations of red tree voles Federal lands within the DPS (Figure 2). red tree voles are susceptible to stand on this ownership. Also, not all areas of The remaining Federal ownership, level disturbances that alter the canopy these combined structure categories may although more fragmented and layer and may cause sites to become provide tree vole habitat, considering dispersed than the southern portion in unsuitable. Biswell (2010, pers. comm.) that empirical evidence indicates only 5 terms of ownership pattern, is generally and Swingle (2010, pers. comm.) have percent of the State ownership within located between Lincoln City and also observed reduction in numbers or the DPS is currently considered tree Tillamook, with a few scattered parcels elimination of red tree voles from stands vole habitat (Dunk 2009, pp. 5, 7). State of BLM land in Columbia and that have been thinned. Hopkins (2010, Forest Management Plans call for Washington Counties. The Siuslaw pers. comm.) found that buffering nests developing more of these older habitats, National Forest comprises 41 percent of with a 10-ac (4-ha) buffer would result but these conditions are not expected to the Federal land in the DPS, and the in the presence of nests post-thinning, be reached for at least 70 years. Salem and Eugene BLM Districts make but he did not attempt to verify vole Moreover, the use of thinning activities up the remainder. Federal lands have occupancy through visual observations to create stands that may be suitable been managed under the Northwest of voles. habitat for red tree voles has not been Forest Plan (NWFP) (USDA and USDI Although State Forest lands are tested; to the extent we can develop the 1994, entire), although there is past and managing part of their landbase to retain appropriate structure and conditions, it ongoing litigation that has, and will and develop some older forest habitat, is reasonable to conclude that much of continue to, affect management the lack of survey and protection the 15 to 25 percent of the landscape planning for BLM within the DPS (see mechanisms to protect existing tree vole targeted as older forest structural below). Implementation of the NWFP sites, combined with the limited condition may eventually be suitable resulted in an 80 to 90 percent availability of current suitable habitat tree vole habitat. However, as described reduction of timber harvests from and intensity of harvest and thinning above, based on the currently observed Federal lands in the Coast Range activities between protected areas, leads proportion of suitable red tree vole compared to levels in the 1980s (Spies us to conclude that existing regulatory habitat relative to layered forest et al. 2007b, p. 50). Approximate timber mechanisms on State lands are conditions, it is likely only some harvests projected for the next 2 years inadequate to ameliorate the threat of undetermined portion of the 15 to 25 on the Federal ownership in the North habitat loss and fragmentation and percent of the landscape targeted as Oregon Coast DPS sum to 99 million provide for the conservation of the layered forest condition may provide board feet (231,000 cubic m) on average North Oregon Coast DPS of the red tree suitable habitat. Finally, thinning per year (Herrin 2011, pers. comm.; vole. activities designed to meet these long- Nowack 2011, pers. comm.; Wilson term structure targets may place 2011, pers. comm.). This may include Summary of Regulatory Mechanisms on additional limitations on the ability of harvest in some areas within an State Land tree vole populations to be well administrative unit that is not As discussed above under connected over those next 70 years. encompassed by the DPS, primarily that ‘‘Regulatory Mechanisms on Private Although the State does manage their portion of the Siuslaw National Forest Land,’’ there may be some ancillary forests with an eventual increase in that lies south of the Siuslaw River benefits to red tree voles from actions older forest conditions as a goal, most of (approximately 15 percent of the forest taken to protect other wildlife species. the State lands within the DPS are acreage). Currently, all the harvest on
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Federal land in the North Oregon Coast objective as LSRs, with a focus on described above. Additional areas of DPS occurs as thinning. Harvest maintaining and developing habitat for older and more structurally complex intensity (annual harvest per acre of northern spotted owls and marbled forest is retained under the WOPR in the landbase) differs by administrative unit murrelets (USDI 2008, p. 2–28). The Deferred Timber Management Area and ranges from 66 board feet per acre combined area of LSR and LSMA equals allocation, but only through the year (0.066 cubic m per ha) per year on the 52 percent of the Federal ownership 2023; this land allocation makes up less Siuslaw National Forest to 154 board managed for the purpose of developing than 0.5 percent of the Federal feet per acre (0.154 cubic m per ha) per and maintaining late-successional ownership within the DPS. year on that portion of the Eugene BLM conditions, although not all of the acres Of the 34 percent of Federal lands not District within the DPS. Acreages used in these allocations currently meet that designated as LSR or AMA in the DPS, to calculate harvest intensity may condition. Although forest structure can 18 percent is classified as either Matrix include acres that are not capable of vary widely with vegetation type, (6 percent) or Timber Management Area producing forest, and may be slightly disturbance regime, and developmental (TMA) (12 percent), NWFP and WOPR underestimated. stage, in Douglas-fir stands of western land allocations, respectively. These Within the DPS, BLM has operated Oregon, 80 years of age is the point at allocations are where commercial under two different management plans which stands can begin to develop the timber harvest is expected to occur (e.g., over the past several years. On structural complexity that is of value to regeneration harvest such as clearcuts). December 30, 2008, BLM published late-successional species (e.g., canopy Allocations to protect streams and Records of Decision (ROD) for the differentiation and multiple canopy other water bodies include Riparian Western Oregon Plan Revisions layers; understory development; large Management Areas (RMA) under the (WOPR), which revised the Resource limbs; large snags and logs; tree decay WOPR, and Riparian Reserves (RR) Management Plans for the BLM units in and deformities in the form of hollow under the NWFP. Under the WOPR, the western Oregon, including those units trees, broken tops, large cavities; and width of RMAs are reduced for most within the DPS. The WOPR meant that epicormic branching) (USDA and USDI water bodies by up to half the distances BLM would no longer be managing their 1994, pp. B–2 through B–7). Thinning compared to Riparian Reserves under land under the standards and guidelines and other silvicultural treatments are the NWFP (USDA and USDI 1994b, pp. of BLM’s 1995 Resource Management allowed in LSRs and LSMAs if needed C–30 through C–31; USDI 2008, p. 2– Plans, which had adopted the to create and maintain late-successional 33). Silvicultural activities, such as Northwest Forest Plan. On July 16, forest conditions. Within LSRs, thinning thinning, are allowed in these 2009, the Acting Assistant Secretary for is allowed in stands up to 80 years old, allocations to meet specific aquatic and Lands and Minerals administratively except for the Northern Coast AMA, riparian objectives (USDA and USDI 1994, pp. C–30 through C–31; USDI withdrew the WOPR RODs. The where it is allowed in stands up to 110 2008, 2–32 through 2–34). Riparian administrative withdrawal of WOPR years (USDA and USDI 1994, p. C–12). Management Areas have been mapped was challenged in court (Douglas There is no age limit for thinning in under WOPR and comprise 4 percent of Timber Operators, Inc. v. Salazar, 09– LSMAs (USDI 2008, p. 2–28). Salvage the Federal ownership within the DPS. 1704 JDB (D.D.C.). On March 31, 2011, after stand-replacement disturbances is Under the NWFP, stream densities in the United States District Court for the allowed in LSRs and LSMAs, although the Coast Range result in much of the District of Columbia vacated and there are different standards and Matrix allocation being overlain by remanded the administrative guidelines in place for these allocations withdrawal of the WOPR RODs, Riparian Reserves that can be anywhere (USDA and USDI 1994, pp. C–13 effectively reinstating the WOPR RODs from 150 to 500 ft (76 to 152 m) wide through C–16; USDI 2008, pp. as the operative Resource Management on each side of the stream, depending Summary-9, 2–28 to 2–32). Plan for BLM lands within the DPS. on the waterbody and site condition However, there remains ongoing The emphasis of the Northern Coast (USDA and USDI 1994b, pp. C–30 litigation, the result of which could Range AMA, an NWFP allocation, is to through C–31; Davis 2009, pers. comm.). affect the implementation of WOPR (e.g. restore and maintain late-successional Overlaying Riparian Reserves and Pacific Rivers Council v. Shepard, Case forest habitat consistent with marbled protections for other species called for No. 3:2011–cv–00442 (D. Or.); AFRC v. murrelet guidelines (USDA and USDI in the NWFP can substantially reduce Salazar-DOI/Locke, Case No. 1:11–cv– 1994, p. D–15) through developing and the area of Matrix available for timber 01174 (D.D.C.)). Our analysis of existing testing new approaches that integrate harvest. For example, between riparian regulatory mechanisms on Federal lands ecological, economic, and other social reserves and other protections required reflects the current management plans objectives. Although 14 percent of the by the NWFP, only 3 percent of the that are officially in place. That is, the Federal land in the DPS is allocated as Siuslaw National Forest is available for NWFP for Forest Service lands, and the AMA, 10 percent of Federal land is timber harvest other than thinning WOPR for BLM lands. managed as LSR within the AMA, treatments designed to meet ecological Of the Federal lands in the DPS, 34 meaning that LSR standards and objectives (Davis 2009, pers. comm.). percent are managed as LSRs, and 14 guidelines are to be followed unless The remaining 10 percent of lands in percent are managed as an Adaptive reconsidered as part of the AMA plan. the DPS under Federal ownership are in Management Area (AMA), which The current AMA plan has retained the Congressional Reserves, includes additional LSR management in original NWFP standards and guidelines Administratively Withdrawn Areas, and portions of the AMA (see below). for LSRs, so in effect 62 percent of the other areas under special management Another 18 percent are managed as Federal ownership is currently managed and not available for timber harvest. Late-Successional Management Area as LSR (52 percent LSR and LSMA, These areas may or may not be (LSMA). The primary management combined, and 10 percent AMA conducive to developing and objectives in LSRs, an NWFP allocation, managed as LSR). The one difference in maintaining older forest conditions, are to protect and enhance late- LSR management within the AMA as depending on their underlying successional forest conditions (USDA compared to the rest of the NWFP area management emphasis. and USDI 1994, p. C–11). The LSMAs, is that thinning is allowed in stands up In 2007, the BLM and the Forest established under WOPR, have a similar to 110 years of age in the AMA, as Service signed Records of Decision
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(USDA 2007, entire; USDI 2007, entire) Although the Survey and Manage allowing dispersal and short-term that eliminated the Survey and Manage standards and guidelines are an artifact persistence of tree voles in landscapes mitigation measures from the BLM of the NWFP—and BLM is currently where older forests are either isolated in Resource Management Plans and the operating under the WOPR and not the remnant patches or have been largely Forest Service Land and Resource NWFP—as signatories to the Survey and eliminated (Swingle 2005, p. 94). Management Plans. These decisions Manage settlement agreement, they are Thinning these younger stands, while were challenged in court (Conservation applying the Survey and Manage designed to develop late-successional Northwest v. Rey, Case No. C–08–1067– program, as described above, on their habitat characteristics in the long term, JCC (W.D. Wash.)). On December 17, ownership within the DPS. The red tree has the potential to degrade or remove 2009, the court issued a decision finding vole falls under the Survey and Manage tree vole habitat characteristics in the multiple National Environmental Policy standards and guidelines; thus, prior to short term, especially if thinning design Act (NEPA) inadequacies in the 2007 certain habitat-disturbing activities, does not account for structural features Final Supplemental Environmental surveys and subsequent management of and the connectivity of those features Impact Statement. The parties to this high-priority sites are required for red that are important to red tree voles litigation reached a settlement tree voles. All sites on Federal land (Swingle and Forsman 2009, p. 284). As agreement that was approved by the within the DPS are considered high- reported in USDA and USDI (2002, p. court on July 6, 2011. The settlement priority sites with the exception of 13), although old, inactive red tree vole agreement reinstates the 2001 Survey 198,000 ac (80,130 ha) of the nests have been found in thinned stands and Manage ROD (USDA and USDI southernmost portion of the DPS and shelterwood treatments, no 2001, entire), as modified by the (primarily located within the Siuslaw occupied nests have been found, settlement agreement, for those Forest River drainage). Some tree vole sites on suggesting that red tree voles are Service and BLM units within the area Federal land in this portion of the DPS susceptible to stand-level disturbances covered by the NWFP. The 2011 would not be considered high-priority that alter the canopy layer and may Settlement Agreement makes four sites, depending on the amount of cause sites to become unsuitable. modifications to the 2001 ROD. It (1) reserve land allocation in the watershed, Biswell (2010, pers. comm.) and acknowledges existing exemptions habitat quality, number of active vole Swingle (2010, pers. comm.) have also (Pechman exemptions) from Survey and nests detected in survey areas, and the observed reduction in numbers or Manage Standards and Guidelines as a total survey effort (USDA and USDI elimination of red tree voles from stands result of an earlier court-approved 2003). that have been thinned. Hopkins (2010, stipulation from different litigation Although federally managed lands are pers. comm.) found that buffering nests (Northwest Ecosystem Alliance v. Rey, expected to provide for large, well- with a 10-ac (4-ha) buffer would result Case No. 04–844–MJP (W.D. Wash.)); (2) distributed populations of red tree voles in the presence of nests post-thinning, updates the 2001 Survey and Manage throughout most of their range, the but he did not attempt to verify vole species list; (3) establishes a transition northern Oregon Coast Range north of occupancy through visual observations period for application of the species list; Highway 20 within the DPS is an of voles. and, (4) establishes new exemption exception. For this area, despite of the categories (2011 Exemptions), to which majority of the Federal land being Red tree voles are afforded more known site management may apply. managed as LSRs or LSMAs, the Final protection on Federal lands than on Under the 2011 settlement agreement, Environmental Impact Statement State Forest and private lands within the Pechman exemptions continue to analyzing the effects of discontinuing the DPS, primarily as a result of the apply to projects classified into four the NWFP Survey and Manage program Survey and Manage protections. Before categories and include thinning in concluded that regardless of the tree commencing timber harvest activities stands younger than 80 years old, vole’s status as a Survey and Manage (except for thinning activities in stands replacing or removing culverts, species, the combination of small under 80 years old), projects must be improving riparian and stream habitat, amounts of Federal land, limited surveyed for tree voles and high priority and using prescribed fire to treat connectivity between these lands, and sites protected. Thirty percent of the hazardous fuels. few known vole sites would result in Federal ownership is currently The 2011 settlement agreement habitat insufficient to support stable considered tree vole habitat; 62 percent establishes seven categories of new populations of red tree voles north of of the Federal ownership is in a land exemptions. Highway 20 (USDA and USDI 2007, pp. allocation wherein management The following categories of activities 291–292). Federal lands provide more objectives call for retaining and are exempt from pre-disturbance habitat for red tree voles than other developing late-successional and old surveys for species on the Survey and ownerships in the DPS and have land forest structural conditions. Another 10 Manage list, but known site allocations, such as LSRs, that require percent are in allocations that preclude management may apply: (1) Recreation; management to maintain and restore timber harvest, although not all of these (2) fish and wildlife habitat restoration; late-successional conditions that are allocations may develop habitat suitable (3) treatment of weeds and sudden oak more suitable as red tree vole habitat. for tree voles. However, most of the death; (4) certain hazardous fuel However, the limited amount of Federal Federal landbase should develop into treatments in Wildland Urban Interface; lands in the DPS restricts red tree vole conditions suitable as red tree vole (5) bridges; (6) non-commercial fuel distribution and magnifies the effect of habitat at some point in the future given treatments; and (7) restoration projects habitat loss occurring from stochastic the current Federal land management. involving commercial logging. The 2011 events, further limiting the red tree In addition, conifer-dominated forests in settlement agreement contains specific vole’s ability to persist in an area or Riparian Reserves and Riparian directions applying known site recolonize new sites (see Factors A and Management Areas may provide management for projects applying the E). additional future habitat. Thinning 2011 exemptions, which vary Thinning treatments are allowed in activities designed to develop older depending upon the 2011 exemption LSRs and LSMAs, but their effect on red forest conditions in the long term may applied, and a species’ Survey and tree voles is not well understood. limit the dispersal capability and Manage category. Younger stands may be important for connectivity of local tree vole
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populations in the short term. Except for commercial timber harvest on relatively to protect habitat for tree voles on the the limited amount and isolated nature short rotation schedules, while nearly 80 percent of the DPS that is of Federal lands north of Highway 20, simultaneously conserving habitat and made up of State or private lands, we federally managed lands are expected to protecting specific wildlife species conclude that overall, existing provide for large, well-distributed during the course of activities associated regulatory mechanisms are not adequate populations of red tree voles throughout with timber growth and harvest. The red to protect the DPS from the threats the rest of their range within the DPS. tree vole is not one of those specific discussed under Factors A and E and, in Based on the above assessment, we species targeted for protection under the conjunction with these additional conclude that existing regulatory OAR, and, due to its relatively factors, pose a significant threat to the mechanisms on Federal land are specialized habitat requirements and persistence of the North Oregon Coast adequate to provide for the conservation limited dispersal abilities, many of the DPS of the red tree vole. of the North Oregon Coast DPS of the guidelines intended to conserve other We have evaluated the best available red tree vole. wildlife species are not sufficient to scientific and commercial data on the inadequacy of existing regulatory Summary of Regulatory Mechanisms on provide adequate habitat for the red tree Federal Land vole. Although some individual red tree mechanisms, and determined that this voles may enjoy incidental benefits if factor poses a significant threat to the Although they comprise less than they are located within tree retention or viability of the North Oregon Coast DPS one-quarter of the land area within the buffer areas, these small buffer areas are of the red tree vole, when we consider DPS, Federal lands provide the majority not expected to provide for long-term this factor in concert with the other of remaining high-quality, older forest persistence of red tree vole populations factors impacting the DPS. habitat for red tree voles within the given their isolated nature and the Factor E. Other Natural or Manmade DPS. The implementation of the allowance for removal of some buffers if Northwest Forest Plan in 1994 led to a Factors Affecting the Species’ Continued the target species are no longer present. Existence dramatic decrease in timber harvest on In addition, short rotations and Federal lands. Management direction for intensive management of the Fragmentation and Isolation of Older the Forest Service (under the NWFP) surrounding stands will not likely Forest Habitats and BLM (under the WOPR) calls for develop or retain the structural features maintaining or restoring late- Tree voles in the northern Oregon advantageous to red tree voles, thus Coast Range evolved in vast, well- successional forest conditions on a contributing to the threat of habitat majority of these lands within the DPS. distributed expanses of primarily late- modification and maintaining the Although some level of timber harvest successional forest. By 1936, the amount isolation of any tree voles that may be continues on these Federal lands, of large-conifer forest was already below present in these areas. Timber harvest particularly in the Matrix and Timber the historical range of 52 to 85 percent rates are expected to continue at current Management Area allocations, it affects of the Coast Range estimated to contain levels on private lands. Protection less than a quarter of the DPS. Some late-successional forest (greater than 80 measures in addition to the OAR degree of thinning also occurs within years old) over the past 1,000 years regulations are provided on State Forest LSRs and LSMAs within the DPS, but if (Wimberly et al. 2000, p. 175; Wimberly lands, allowing for more retained and managed according to the standards and and Ohmann 2004, p. 642). In 1936, protected areas on the landscape. State guidelines of the respective extensive patches of large-conifer management plans, and if such thinning Forests are also being managed to Douglas-fir forest connected much of the does not exceed the current rates, the increase the amount of structurally central and southern portions of the effects of such treatments on red tree complex forests. However, loss and Coast Range Province. In the northern voles are believed to be relatively minor. modification of red tree vole habitat on quarter of the province, patches of large The recent reinstatement of Survey and private and State lands as a result of Douglas-fir combined with large spruce- Manage standards and guidelines timber harvest continues under existing hemlock forest and intermingled with contributes to the conservation of the regulatory mechanisms. Furthermore, large patches of open and very young red tree vole and its habitat within the there are no mechanisms in place to stands (Wimberly and Ohmann 2004, DPS. We therefore consider existing locate and protect existing occupied tree pp. 635, 639). Most of those open and regulatory mechanisms adequate to vole sites outside of retention areas. young stands encompassed the 300,000 provide for the conservation of the red Although Federal lands offer some acres (121,410 ha) burned in the 1933 tree vole on Federal lands where they habitat protection and management, Tillamook fire. By 1996, large blocks of occur within the DPS. However, the there may not be enough habitat in a the remaining large-conifer forest were insufficient quantity of Federal lands condition to provide for the red tree restricted to Federal and State lands in and their distribution within the DPS vole north of U.S. Highway 20 where the central portion of the Coast Range contribute to the threat of habitat Federal land is limited. There is Province, having been eliminated from fragmentation, isolation, and potential restricted connectivity among blocks of most private lands (Wimberly and extirpation of local populations due to Federal land in this area, and few Ohmann 2004, p. 635). Elsewhere, large- stochastic events, as detailed in Factor known vole sites currently available to conifer forests were primarily isolated E, below. recolonize habitat. Given survey and in scattered fragments on public land. protection measures in place for tree The 1936 area of the Coast Range Conclusion for Factor D voles, the low level of timber harvest Province covered by large Douglas-fir Existing regulatory mechanisms are compared to other ownerships, and the (2,052 square mi (5,315 square km)) and inadequate to provide for the protection projected management of over 62 large spruce-hemlock (344 square mi and management of red tree voles on the percent of their landbase to maintain or (891 square km)) cover types declined 78 percent of the DPS made up of non- develop late-successional conditions, by 1996, primarily as a result of timber Federal (private and State) lands. The current regulatory mechanisms appear harvest, resulting in a 58 percent State of Oregon has regulatory to be adequate on Federal lands. reduction in the total area of large- mechanisms in place on private and However, because we find that existing conifer forest. Conversely, the combined State lands designed to provide for regulatory mechanisms are not adequate area of small Douglas-fir and spruce-
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hemlock forests increased by 87 percent in the absence of better information on included hardwood species as part of (Wimberly and Ohmann 2004, pp. 639– the stand size needed to sustain tree the canopy cover component allowing 641). vole populations (USDA and USDI for the possibility of LSOG patches Not only have amounts of older forest 2000b, p. 7), we consider the 75-ac (30- comprising primarily hardwood stands decreased, but the spatial distribution of ha) minimum patch size identified by with scattered large conifers. While tree those forests has changed. Prior to Huff et al. (1992, pp. 6–7) the best voles have been found in mixed conifer/ European settlement, vegetation available information to use for our hardwood stands, their exclusive diet of simulations indicate that mature (80– analysis because it represents actual tree conifer needles would limit the habitat 200 years) and old-growth forest (greater vole occurrence and not just presence of capability of stands that are primarily than 200 years) patches had the highest a nest. As part of our analysis, we found hardwood. Therefore, our analysis of densities of all successional stages that 59 percent of the area mapped as remaining older forest patches in the within the Coast Range Province. In LSOG occurred in patches larger than 75 DPS provides an overestimate in terms addition, old-growth patches were large, ac (30 ha). If we extrapolate this of remaining potential tree vole habitat, ranging from 810 to 3,280 square mi proportion to Dunk’s (2009, p. 7) given that the LSOG data used provide (2,100 to 8,500 square km), with a analysis showing only 11 percent of the a liberal characterization of tree vole median of 1,660 square mi (4,300 square DPS containing actual tree vole habitat habitat. Furthermore, the GIS pixel km), while patches of less than 80-year- (418,000 ac (169,165 ha)), we find the aggregation used likely characterized old forests were generally less than 770 suitability potentially further reduced to some of the data as patches that would square mi (2,000 square km) (Wimberly only 246,620 ac (99,807 ha), or 6 percent in reality be too porous to function as 2002, p. 1322). In the Coast Range of the DPS. This is consistent with Dunk tree vole habitat, increasing the Province today, the largest old-growth (2009, p. 9), who noted that his work potential for overestimation. Applying patch is 2.5 square mi (6.5 square km), did not take into account habitat the proportion of this LSOG data set that while the largest patch of early-seral fragmentation, connectivity, and meets the minimum forest patch size to forest (less than 30 years old) is larger metapopulation dynamics that may the area of DPS considered suitable tree than 1,900 square mi (5,000 square km), influence whether populations or vole habitat (Dunk 2009, p. 7), an and the largest patch of 30 to 80-year- individual tree voles could occur within analysis considered a likely old forest is larger than 1,150 square mi his area of analysis. overestimate of tree vole occupancy (see (3,000 square km) (Wimberly et al. 2004, It is important to note that even the Factor A. Continuing Modification and p. 152). Current Condition of Red Tree Vole Within the DPS, we analyzed data forested areas identified as individual ‘‘patches’’ through a geographic Habitat, above), we find only 6 percent compiled as part of the NWFP of the DPS may be in suitable habitat effectiveness monitoring program information systems (GIS) program do not necessarily represent areas of forest that is of a large enough patch size to (USDA/USDI 2010, unpublished data) sustain tree voles. This suggests that the for the distribution of late-successional with continuous canopy cover. remaining potentially suitable habitat and old-growth (LSOG) patches within Although these patches of forest are for tree voles is highly fragmented, the DPS. As part of our analysis, we technically connected at some level, which further lessens the probability of wanted to see what proportion of the inspection of the data reveal that they long-term persistence of red tree voles LSOG habitat comprised patches large are for the most part highly porous and under current conditions in the DPS. enough to support tree voles, and how discontinuous, and we performed no close these patches were to other analysis to filter out stands that may be In simulated pre-European settlement suitable patches. There is little so porous or discontinuous as to forests of the Coast Range Province, information on minimum stand sizes provide no interior habitat. most forests less than 200 years old used by tree voles and a complete lack Furthermore, the LSOG definition used were within 0.4 mi (1 km) of an old- of information on what is needed to as part of the NWFP monitoring growth forest patch. This pattern has sustain tree vole populations (USDA program (mean tree DBH of 20 in (50.8 reversed, with a considerable increase and USDI 2000b, p. 7). In Polk and cm) or greater; canopy cover 10 percent in isolation of old-growth forest patches Tillamook Counties, Hopkins (2010, or greater; all tree species included) can (Wimberly et al. 2004, p. 152). Our pers. comm.) found vole nests in forest include stands that do not necessarily analysis of the LSOG forest data patches as small as 5 to 10 acres (2 to equate to red tree vole habitat and provided by the NWFP effectiveness 4 ha) in the oldest (350–400 years), most represents a substantial overestimate. monitoring program indicates that in the structurally complex stands available. For example, while the LSOG dataset DPS, the average distance between Huff et al. (1992, pp. 6–7) compiled data identified 759,968 ac (307,559 ha) of LSOG forest patches greater than 75 ac on actual red tree vole presence and LSOG within the DPS, Dunk (2009, pp. (30 ha) in size was 1,745 ft (532 m). found the mean age of stands in which 4, 7) found red tree vole habitat to Larger patches greater than 500 ac (202 tree voles were found in the Coast Range comprise approximately 425,000 ac ha) in size were separated by 6,158 ft was 340 years and the minimum stand (172,000 ha) of the DPS (see Continuing (1,877 m) on average. This increasing size was 75 ac (30 ha), with mean and Modification and Current Condition of isolation of LSOG forest patches due to median stand sizes of 475 and 318 ac Red Tree Vole Habitat in Factor A, maintenance of younger stands in the (192 and 129 ha), respectively. Whether above). There are several reasons why intervening areas poses a threat to the a minimum patch size of 5 to 10 ac (2 the LSOG database represents a liberal red tree vole, as the dispersal capability to 4 ha) or even 75 ac (30 ha) can sustain (i.e., overly generous) description of red of this species is so limited. As noted a population of red tree voles over the tree vole habitat. First, the dataset earlier, the greatest known dispersal long term is unknown and is influenced included stands with canopy cover as distance for an individual red tree vole by such things as habitat quality within low as 10 percent, which is well below is 1,115 ft (340 m) (Biswell and Meslow, and surrounding the stand, the position the minimum canopy cover of 53 unpublished data referenced in USDA of the stand within the landscape, and percent and even further below the and USDI 2000b, p. 8), but shorter the ability of individuals to move among mean of 78 percent for stands in which distances from 10 to 246 ft (3 to 75 m) stands (Huff et al. 1992, p. 7; Martin and Swingle (2005, p. 39), as one example, appear to be more the norm for McComb 2003, pp. 571–579). However, found tree vole nests. The dataset also dispersing subadults (Swingle 2005, p.
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63). The current average distance where fragmentation is minimized amounts of Federal land, limited between patches of LSOG forest in the (Martin and McComb 2002, p. 262); connectivity between these lands, and DPS thus exceeds the known dispersal having evolved in extensive areas of few known vole sites north of Highway distances of red tree voles. A matrix of relatively more contiguous late- 20 would result in habitat insufficient to surrounding younger forest is not successional forest, tree voles are support stable populations of red tree entirely inhospitable habitat for especially vulnerable to the negative voles (USDA and USDI 2007, pp. 291– dispersing red tree voles, but effects of fragmentation and isolation 292). The authors of the report further survivorship in such habitats is likely due to their limited dispersal capability. concluded that due to these reduced. Whether red tree voles can Within the DPS, virtually all of the vulnerabilities, ‘‘every site is critical for successfully disperse between Federal land lies in two widely persistence’’ for the red tree vole in remaining patches of fragmented habitat separated clusters (Figure 2). Much of Oregon’s North Coast Range north of depends on their vagility and tolerance the southern portion of the DPS, south Highway 20 (USDA and USDI 2007, p. for the intervening matrix habitat of U.S. Highway 20, is Federal land, 292). Given the fragmented nature of (Pardini 2004, p. 2581). with the other cluster of Federal land Federal lands providing late- Historically, dispersal between trees lying north of Highway 20, mainly successional conditions in the DPS and in areas of more contiguous older forest between Lincoln City and Tillamook. As the limited connectivity between these would not have been a limiting factor most of the remaining high-quality remaining blocks, it is unlikely that the for red tree voles, but under the current habitat for red tree voles within the DPS small projected increase in suitable conditions of fragmentation, the ability is restricted to these two clusters of habitat that may develop over the next of individuals to disperse between Federal lands, there is little redundancy 100 years on Federal lands will be patches of remaining high quality for tree vole populations within the sufficient to offset the more immediate habitat is restricted. Limited dispersal DPS, and loss of either cluster would threats of habitat destruction, can translate into a lack of sufficient result in the single remaining cluster modification, and fragmentation that gene flow to maintain diversity and and its associated tree vole population threaten the North Oregon Coast evolutionary potential within the being highly vulnerable to extirpation population of the red tree vole. population, possible inbreeding through some stochastic event, such as depression, Allee effects (e.g., failure to Summary of Fragmentation and wildfire. These two blocks of Federal Isolation of Older Forest Habitats locate a mate), and other problems (e.g., ownership are separated by primarily Red tree voles are considered habitat Soule´ 1980, entire; Terborgh and Winter private and some State lands. Except for specialists and are strongly associated 1980, pp. 129–130; Shaffer 1981, p. 131; a small patch of checkerboard BLM with large, relatively more contiguous Gilpin and Soule´ 1986, pp. 26–27; ownership in southeast Columbia and areas of conifer forests with late- Lande 1988, pp. 1457–1458). The northeast Yamhill Counties, along with successional characteristics; they are not potential for the local loss of a few small State parks, ownership adapted to fragmented or patchy populations is high, as remnant habitat north of Tillamook consists almost habitats (Martin and McComb 2002, p. patches formerly occupied by tree voles entirely of private timberland and lands 262). The older forest habitat associated may not be recolonized due to the managed by the Oregon Department of with red tree voles has been distance between habitat fragments and Forestry (Tillamook and Clatsop State significantly reduced through historical the short-distance dispersal of the Forests). species, leading to local extirpation and timber harvest, and as discussed under further isolation of the remaining small Implementing current land Factor A, above, ongoing management populations, and possibly eventual management policies in the Coast Range for timber production maintains much extinction (see Isolation of Populations is projected to provide a modest of the remaining older forest habitat in and Small Population Size, below). As increase (approximately 20 percent) in a fragmented and isolated condition, noted above, although we do not have red tree vole habitat over the next 100 surrounded by younger forests of lower standardized, quantitative survey data, years, primarily on public lands (Spies quality habitat for tree voles. We the fact that red tree voles are et al. 2007b, p. 53). However, red tree analyzed data compiled as part of the increasingly difficult to find and have vole populations appear to be NWFP effectiveness monitoring program apparently disappeared from some areas decreasing in the face of current threats (USDA/USDI 2010, unpublished data) where they were formerly known to to their habitat. Therefore, we conclude and found that of the remaining older occur suggests that current habitat that this limited increase in suitable forest within the DPS, 59 percent is in conditions are not conducive to the habitat that may develop on public patches greater than 75 ac (30 ha), but successful dispersal or maintenance of lands over an extended length of time these patches comprise only 6 percent red tree vole populations within the will not be sufficient to address the lack of the entire DPS. The average distance DPS. of connectivity that currently exists between the remaining patches that are Highly suitable red tree vole habitat between Federal lands, due to land at least 75 ac (30 ha) in size exceeds the (that with the greatest strength of management practices on the known dispersal distances of red tree selection) is quite rare throughout the intervening lands (USDA and USDI voles. This suggests that red tree voles range of the red tree vole (Dunk and 2007, p. 291). Furthermore, currently are unlikely to persist over the long term Hawley 2009, p. 632) and is even more small, isolated populations of tree voles in most of the remaining patches of restricted within the North Oregon may not be capable of persisting over older forest habitats within the DPS, Coast DPS (Dunk 2009, pp. 4–5). the length of time required to enjoy the because most of them are likely too Moreover, large blocks of older forest benefits of this projected increase in small or too isolated to support tree vole (greater than 1,000 ac (400 ha)) are suitable habitat, but may more likely be populations. Although the surrounding restricted primarily to Federal lands, subject to local extirpations in the younger forests may serve as interim or with contiguous blocks separated by intervening time period. The Final dispersal habitat, the evidence suggests great distances (Moeur et al. 2005, p. Environmental Impact Statement that such forest conditions are unlikely 77). Fragmentation complicates habitat analyzing the effects of discontinuing to support persistent populations of red availability for red tree voles, which the NWFP Survey and Manage program tree voles. Furthermore, our evaluation select for patches of large tree structure concluded that the combination of small suggests that the remaining older forest
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habitat for tree voles is highly vole habitat has been identified as a 1982, pp. 336–337; Agee 1993, p. 212; fragmented, which further lessens the substantial threat to their persistence. Wimberly et al. 2000, p. 172). Starting probability of long-term persistence of Changing climate could further reduce in the mid-1800s, climate change, red tree voles under current conditions tree vole habitat in ways that are combined with Euro-American in the DPS due to the limited dispersal difficult to predict. settlement, may have influenced the capability of the species, and other Globally, poleward and upward onset of large-scale fires (Weisberg and consequences of isolation (see Isolation elevational shifts in the ranges of plant Swanson 2003, p. 25). Another of Populations and Small Population and animal species are being observed complication in these wetter forests has Size, below). and evidence indicates recent warming been a pattern of multiple reburns that Most of the remaining high-quality is influencing this change in occurred, such as the Tillamook burns habitat for red tree voles in the DPS is distribution (Parmesan 2006, pp. 648– of 1933, 1939, 1945, and 1951. Reburns restricted to Federal lands; however, 649; IPCC 2007, p. 8; Marris 2007, may or may not add large amounts of these lands make up only 22 percent of entire). In North America, and additional area to the original burn, but the area within the DPS, and they occur specifically in the Pacific Northwest, they have the potential to impede the in two widely spaced clusters, one north effects of forest pathogens, insects, and development of the stand for decades, of Highway 20 and one south of fire on forests are expected to increase, delaying the ultimate return to older Highway 20. Thus, there is little resulting in an extended period of high forest habitat suitable for red tree voles redundancy for tree vole populations fire risk and large increases in area (Agee 1993, p. 213). Forests in the within the DPS, and loss of either burned (IPCC 2007, p. 14; Karl et al. Pacific Northwest face a possible cluster on Federal lands would result in 2009, pp. 136–137; OCCRI 2010, pp. 16– increased risk of large-scale fires within the single remaining cluster and its 18; Shafer et al. 2010, pp. 183–185). The the foreseeable future; under the associated tree vole population being pattern of higher summer temperatures conditions of anticipated climate highly vulnerable to extirpation or even and earlier spring snowmelt, leading to change, the effects of forest pathogens extinction through some stochastic greater summer moisture deficits and and fire on forests are expected to event, such as wildfire (see Climate consequent increased fire risk, has increase, resulting in an extended Change, below). Under present already been observed in the forests of period of high fire risk and large conditions, the Federal lands north of the Pacific Northwest (Karl et al. 2009, increases in area burned (IPCC 2007, p. Highway 20 are already considered p. 136). Ecosystem resilience is 14; Karl et al. 2009, pp. 136–137). Most insufficient to support stable expected to be exceeded by the recently, the Oregon Climate Change populations of red tree voles (USDA and unprecedented combination of climate Research Institute predicted that large USDI 2007, pp. 291–292). change, its associated disturbances, and fires will become more common in the Under the current conditions of other ecosystem pressures such as land- forests west of the Cascades, which habitat fragmentation within the DPS, use change and resource over- includes the forests of the North Oregon the ability of red tree voles to disperse exploitation (IPCC 2007, p. 11). These Coast Range; estimated increases in between patches of remaining high- projections discussed above indicate regional forest areas burned over the quality habitat are extremely restricted, further reduction and isolation of red next century ranged from 180 to 300 and the evidence suggests that any tree vole habitat over the next century. percent (OCCRI 2010, p. 16). remaining tree vole populations within Red tree voles in the North Oregon the DPS are likely relatively small. The Coast DPS cannot shift their range Considering that the majority of the potential for the local loss of farther north due to the existing barrier remaining tree vole habitat in the DPS populations is therefore high, as of the Columbia River, which defines is limited to Federal land, which remnant habitat patches formerly the northern boundary of their current comprises a total of roughly 850,000 ac occupied by tree voles may not be and historical range. In addition, their (344,000 ha) and is restricted to two recolonized due to the distance between range already occupies the summit of separate clusters in the DPS, it is habitat fragments and the short-distance the Oregon Coast Range, so a shift to certainly possible to lose much of the dispersal capabilities of the species, higher elevations is also not possible. Federal land in either of these blocks to leading to local extirpation and further Climate change assessments predict a single stand-replacement fire, further isolation of the remaining small possible extinctions of such local limiting habitat and restricting the range populations, and possibly eventual populations if they cannot shift their of the tree vole in the DPS. Fire extinction (see Isolation of Populations ranges in response to environmental suppression organization and tactics and Small Population Size, below). change (Karl et al. 2009, p. 137). have improved since the large fires of Furthermore, ongoing timber harvest in Increased Frequency and Magnitude the last two centuries, resulting in a surrounding areas of younger forests of Wildfire due to Climate Change. In reduction in stand-replacement fires contributes to the threat of habitat the western hemlock and Sitka spruce (Wimberly et al. 2000, p. 178), although fragmentation and isolation, as plant series that dominates the Coast Weisberg and Swanson (2003, p. 25) discussed above in Factors A and D. Range, fires tend to be rare but are note that suppression success may have Therefore, based on the above usually stand-replacing events when been influenced by the reduction in fuel evaluation, we conclude that the they take place, although low and accumulations that these extensive fires fragmentation and isolation of older moderate severity fires also occur accomplished. Regardless, the intense, forest habitats pose a significant threat (Impara 1997, p. 92). Sediment core data large, high-severity fires that can occur to the North Oregon Coast DPS of the show mean fire return intervals of 230 in the Coast Range are driven by severe red tree vole. to 240 years over the past 2,700 years weather events (droughts or east wind (Long et al. 1998, p. 786; Long and patterns) (Agee 1997, p. 154), conditions Climate Change Whitlock 2002, p. 223). Three large under which fire suppression is severely General Impacts. Climate change fires, ranging from 300,000 to 800,000 hampered at best and ineffectual at presents substantial uncertainty acres (120,000 to 325,000 ha), occurred worst (Impara 1997, pp. 262–263). regarding future vegetation and habitat in the DPS in the 1800s, in addition to Although large fires occurred within the conditions in the North Oregon Coast the Tillamook fires of 1933–1951 DPS historically, in the past there were DPS. Reduction and isolation of red tree (Morris 1934, pp. 317–322, 328; Pyne many additional areas of older forest
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that were less isolated from other older caused by the fungus Phaeocryptopus There is still much uncertainty in our forest stands and could serve as refugia gaeumannii. It is typically found in understanding of this pathogen to for tree voles displaced from forests that Douglas-fir grown outside of its native project future trends in vegetation. burned; under current conditions, there range, but in western Oregon it is While it could result in a return of are few such refugia available primarily found, and is more western hemlock and Sitka spruce that (Wimberly 2002, p. 1322; Wimberly et consistently severe, along the western were removed as a result of conversion al. 2004, p. 152) (see Modification of slope of the central and northern Oregon to Douglas-fir plantations, the Oregon Coast Range Vegetation above). Coast Range, which overlaps both the commercial value of Douglas-fir is a Given that we have evidence of past Sitka spruce and western hemlock plant major incentive to continue research to fires in the Coast Range that burned series. Douglas-fir accounted for less develop pathogen treatments that would areas of up to 800,000 ac (325,000 ha), than 20 percent of the forest allow continued existence of healthy an amount roughly twice as large as composition prior to the 1940s in this Douglas-fir stands. In addition, either of the remaining clusters of portion of the Coast Range, but timber projected effects of climate change (see Federal land within the DPS, and that harvest and large-scale planting of Increased Frequency and Magnitude of projections under anticipated Douglas-fir on cutover areas make it the Wildfire due to Climate Change, above) conditions of climate change point to dominant species today. The wetter, could alter the extent of the fog zone in the increased risk and magnitude of fire milder weather, combined with a which Swiss needle cast is prevalent. in this region (e.g., OCCRI 2010, p. 16), uniform distribution of the host species, Summary of Swiss Needle Cast we believe it is reasonably likely that a favor the fungus and help spread the single stand-replacing fire could occur disease (Hansen et al. 2000, p. 777; Swiss needle cast is a foliage disease within the foreseeable future that would Shaw 2008, pp. 1, 3). In Oregon, Swiss specific to Douglas-fir, and is found in eliminate much of the remaining needle cast is geographically limited to western Oregon along the western slope suitable habitat for tree voles within the western Oregon and there is no of the central and northern Oregon DPS. evidence of it expanding. Even so, it has Coast Range. Some of the most severe infestations of Swiss needle cast occur Summary of Climate Change affected about 1 million ac (405,000 ha), much of that in the northern and central in the Sitka spruce plant series, which The uncertainty in climate change Oregon Coast Range of the DPS. It is is the plant series in the DPS where tree models prevents a specific assessment roughly estimated that about half of the voles forage primarily on western hemlock and Sitka spruce. However, the of potential future threats to the North land base is moderately afflicted by Oregon Coast DPS of the red tree vole disease also occurs in the western Swiss needle cast, and about 10 percent as a consequence of projected warming hemlock plant series on the western of the area is severely afflicted by this trends and the various environmental slope of the Oregon Coast Range, where disease (Filip 2009, pers. comm.). and ecological changes associated with most of the voles that forage on Douglas- increasing temperatures. However, the Swiss needle cast causes premature fir tend to occur. Thus, while the direction of these future trends indicate needle loss which, although rarely disease may ultimately improve foraging that climate change will likely lethal, reduces tree growth rates by 20 sources for some red tree voles over the exacerbate some of the key threats to the to 55 percent (Shaw 2008, pp. 1–2). long term, it may remove forage for DPS, such as an increased probability of Most of the research on this disease has others. In addition, Swiss needle cast large wildfires which may result in the occurred in managed plantations less may affect forest characteristics in further destruction, modification, than 40 years old (Shaw 2009, pers. mixed species stands that affect tree fragmentation, and isolation of older comm.), although it is known to limit voles and are unrelated to foraging, such forest habitats, and evidence suggests growth in established overstory trees as canopy closure and structural that such changes may already be greater than 100 years old, even within components that may provide cover. occurring. High-quality habitat for red mixed-species stands (Black et al. 2010, Therefore, the potential impact that this tree voles within the DPS is largely p. 1680). Forest pathologists are just disease may have on the tree vole restricted to two clusters of Federal beginning to understand how to manage population is not well understood at lands, and these areas are small enough this disease. Thinning treatments to this time. Although Swiss needle cast that a single stand-replacing fire could improve tree vigor in infected stands do may potentially have some negative potentially concentrate the remaining not appear to exacerbate the spread of effects on red tree voles, at this point in red tree voles to primarily a single the disease or its effects on tree health. time we do not have evidence that the population that would be highly However, young Douglas-firs infected impacts of Swiss needle cast are so vulnerable to extirpation or extinction with the pathogen are not expected to severe as to pose a significant threat to from future stochastic events. outgrow the disease (Black et al. 2010, the North Oregon Coast DPS of the red Furthermore, red tree voles within the p. 1680) and may never develop the tree vole. DPS are restricted in their ability to shift large structures that are integral features Isolation of Populations and Small their range in response to changes that of older forests. Given our current Population Size may take place as a consequence of knowledge, a likely scenario in these climate change. We therefore conclude stands is that the non-host Sitka spruce There are multiple features of red tree that the environmental effects resulting and western hemlock will become the vole biology and life history that limit from climate change, by itself or in dominant cover, moving these sites their ability to respond to habitat loss combination with other factors, closer to the historical species and alteration, as well as to stochastic exacerbate threats to the North Oregon composition present before earlier forest environmental events. Due to their Coast DPS of the red tree vole. management converted them to current restricted distribution within Douglas-fir (Filip 2009, pers. comm.). the DPS, stochastic events could further Swiss Needle Cast Where these non-host species are isolate individuals and consequently A large-scale disturbance event deficient or absent in infected stands, limit their recolonization capability. currently ongoing in the Oregon Coast reestablishing them in the stand is the Small home ranges and limited Range is the spread of Swiss needle cast, only known treatment certain to reduce dispersal distances of red tree voles, as a foliage disease specific to Douglas-fir the spread and extent of the disease. well as their apparent reluctance to
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cross large openings, likely make it voles, leads us to conclude that and Simberloff 1986, pp. 28–29; Nunney difficult for them to recolonize isolated movement of individuals between and Campbell 1993, pp. 236–237; Reed habitat patches. As discussed above in patches of older forest habitat is and Frankham 2003, pp. 233–234; the section ‘‘Fragmentation and infrequent at best. Therefore, we Blomqvist et al. 2010, entire). Although Isolation of Older Forest Habitats,’’ conclude that at present, the red tree we do not have any information on within the DPS, forests with the late- vole most likely persists as a set of relative levels of genetic variability in successional characteristics that relatively isolated populations in red tree vole populations, Swingle represent high-quality habitat for red discrete patches of older forest habitat (2005, p. 82) suggested that genetic tree voles presently exist in a highly and surrounding lower quality, younger inbreeding may be maintaining cream- fragmented state, the average distance forest, with little if any interaction colored and melanistic tree vole pelage between the minimum patch sizes between these populations. polymorphisms at a few populations associated with nesting exceeded the Although we do not have direct within the red tree vole’s range. Swingle known maximum dispersal distance of evidence of red tree vole population (2005, p. 82) did not elaborate on his red tree voles. Based on this sizes within the DPS, the evidence suggestion, nor account for the information, we conclude that high- before us suggests that remaining local possibility that alternative processes quality older forest habitats for red tree tree vole populations are likely may be maintaining these different color voles within the DPS are in a highly relatively small and isolated. We base forms. fragmented and isolated condition. this conclusion on the limited amount Based on this evaluation, we conclude that the isolation of red tree vole Without the ability to move between of tree vole habitat remaining within the populations due to fragmentation of isolated patches of occupied habitat, DPS, on the fragmented and isolated their remaining older forest habitat, local populations act essentially as nature of the remaining habitat, and on independent of the total area of suitable islands vulnerable to local extirpation, evidence from recent search efforts, habitat that may be left, poses a resulting from a disequilibrium between which have yielded few voles relative to significant threat to the red tree vole local extinction and immigration events historical search efforts, suggesting that within the DPS. (Brown and Kodric-Brown 1977, p. 445). red tree vole numbers are greatly Some species are adapted to living in reduced in the DPS compared to Summary of Isolation of Populations patchy environments and may exist as historical conditions (see Background and Small Population Size a series of local populations connected and Past and Current Range and Remaining red tree vole populations by occasional movement of individuals Abundance under Factor A, above, for in the North Oregon Coast DPS likely between them, known as details). That isolated populations are persist primarily in isolated patches of ‘‘metapopulations’’ (e.g., Hanski and more likely to decline than those that fragmented, older forest habitat, and the Gilpin 1991, p. 7). However, it is are not isolated (e.g., Davies et al. 2000, surrounding younger forest habitats are presumed that the red tree vole was p. 1456) is discussed above. In addition subject to continuing habitat formerly more continuously distributed to isolation, population size also plays modification due to timber harvest that throughout the late-successional forests an important role in extinction risk. tends to maintain the forest in this of the Oregon Coast Range and has only Small, isolated populations place highly fragmented condition (see Factor recently become ‘‘insularized’’ (isolated species at greater risk of local A discussion and Fragmentation and into islands of habitat) through habitat extirpation or extinction due to a variety Isolation of Older Forest Habitats, fragmentation. The limited dispersal of factors, including loss of genetic above). Red tree voles are considered ability of the red tree vole indicates this variability, inbreeding depression, highly vulnerable to local extirpations species is not adapted to living in a demographic stochasticity, due to habitat fragmentation or loss patchy environment, where long- environmental stochasticity, and natural (Huff et al. 1992, p. 1). Species that have distance movements between catastrophes (Franklin 1980, entire; recently become isolated through populations are occasionally required. Shaffer 1981, p. 131; Gilpin and Soule´ habitat fragmentation do not necessarily Although in many cases the tree voles 1986, pp. 25–33; Soule´ and Simberloff function as a metapopulation and, within the DPS are not separated by 1986, pp. 28–32; Lehmkuhl and especially in the case of species with completely inhospitable matrix habitat, Ruggiero 1991, p. 37; Lande 1994, poor dispersal abilities, local but may only be isolated by surrounding entire). Stochastic events that put small populations run a high risk of extinction areas of forest in earlier seral stages, the populations at risk of extinction when extirpations outpace dispersal and apparent disappearance of red tree voles include, but are not limited to, variation immigration (Gilpin 1987, pp. 136, 138; from many areas where they were in birth and death rates, fluctuations in Hanski and Gilpin 1991, p. 13; Hanski formerly found leads us to believe that gender ratio, inbreeding depression, and et al. 1996, p. 539; Harrison 2008, pp. successful recolonization of formerly random environmental disturbances 82–83; Sodhi et al. 2009, p. 518). Some occupied areas is likely infrequent, if it such as fire, wind, and climatic shifts conservation biologists suggest that for occurs at all (see discussion of Past and (e.g., Shaffer 1981, p. 131; Gilpin and species with poor dispersal abilities, Current Range and Abundance under Soule´ 1986, p. 27; Blomqvist et al. 2010, habitat fragmentation is likely more Factor A, above). As noted above, the entire). The isolation of populations and important than habitat area as a average distance between patches of consequent loss of genetic interchange determinant of extinction probability potentially suitable habitat at a may lead to genetic deterioration, for (Shaffer and Sansom 1985, p. 146). The minimum of 75 ac (30 ha) in size in the example, that has negative impacts on low reproductive rate and lengthy DPS exceeds the greatest known the population at different timescales. In development period of young, relative dispersal distance for a red tree vole. the short term, populations may suffer to other vole species, adds further to the The apparent disappearance of red tree the deleterious consequences of inherent vulnerabilities of the red tree voles from areas where they were inbreeding; over the long term, the loss vole and may limit population growth; formerly found, combined with the of genetic variability diminishes the the isolation of tree voles through isolation of remaining habitat patches at capacity of the species to evolve by insularization likely exacerbates these distances on average greater than the adapting to changes in the environment inherent vulnerabilities (Bolger et al. known dispersal capability of red tree (e.g., Franklin 1980, pp. 140–144; Soule´ 1997, p. 562).
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For the reasons given above, based on small, isolated populations are at risk of cast poses a significant threat to the DPS the observed level of habitat local extirpation due to a variety of at this point in time. fragmentation and isolation that has factors, including loss of genetic We have evaluated the best available occurred within the DPS, the presumed variability, inbreeding depression, scientific and commercial data on other small size of remaining tree vole demographic stochasticity, natural or manmade factors affecting the populations, and the inherent environmental stochasticity, and continued existence of the North Oregon vulnerabilities of the red tree vole to disturbance events. The lack of Coast DPS of the red tree vole, including local extirpation or extinction due to its redundancy in red tree vole populations the effects of habitat fragmentation, as life history characteristics, we conclude within the North Oregon Coast DPS exacerbated by the environmental that the isolation of populations and the renders these populations highly effects of climate change, isolation of consequences of small population size vulnerable to large-scale catastrophes or small populations, and consequences of pose a significant threat to the red tree disturbance events, such as wildfire, small population size, and determined vole within the North Oregon Coast and this vulnerability is exacerbated by that this factor poses a significant threat DPS. climate change. to the viability of the North Oregon Coast DPS of the red tree vole, when we Summary of Factor E Conclusion for Factor E consider this factor in concert with the Population isolation, presumed small Red tree voles are considered highly other factors impacting the DPS. local population size, and potential loss vulnerable to local extirpations due to of populations to large-scale disturbance habitat fragmentation or loss, and the Finding events exacerbated by climate change, evidence suggests that the vast majority As required by the Act, we considered combined with the life-history traits that of forest with potentially suitable the five factors in assessing whether the put red tree voles at a disadvantage in characteristics for tree voles persists in North Oregon Coast DPS of the red tree moving between and recolonizing new very small, disconnected patches in the vole is threatened or endangered habitats in an already fragmented DPS. The continuing modification of throughout all of its range. We have landscape, are the principal threats forest habitats, as discussed under carefully assessed the best scientific and considered under this factor that Factor A, maintains the older forest commercial data available regarding the significantly affect the species. habitats associated with red tree voles in past, present, and future threats faced by Although precise quantitative estimates this fragmented and isolated condition. the North Oregon Coast DPS of the red are not available, recent surveys suggest The narrow habitat requirements, low tree vole. We reviewed the petition, that populations have substantially mobility, relatively low reproductive information available in our files, and declined in the DPS, and that red tree potential, and low dispersal ability of other published and unpublished voles are likely at greatly reduced red tree voles limits their movement information submitted to us by the numbers relative to their historical among existing patches of remnant public following our 90-day petition abundance. Furthermore, our analysis of habitat. This fragmentation of habitat, finding, and we consulted with LSOG data from the NWFP effectiveness resulting in small, isolated populations recognized experts on red tree vole monitoring program indicates that, of tree voles, can have significant biology, habitat, and genetics, as well as within the DPS, any remaining highly negative impacts on the North Oregon with experts on the vegetation of the suitable habitat is highly fragmented Coast DPS of the red tree vole, including northern Oregon Coast Range. In and patchy in occurrence. Patches of potential inbreeding depression, loss of addition, we consulted with other forest meeting older forest standards genetic diversity, and vulnerability to Federal and State resource agencies and that are overly generous for red tree extirpation as a consequence of various completed our own analyses of the voles, and thus are likely overestimating stochastic events. Although large-scale available data. the size and number of remaining disturbance events such as fire are not On the basis of the best scientific and patches that provide suitable habitat, common in the Coast Range, we have commercial data available, we find that indicate that the average distance historical evidence of occasional very the population segment satisfies the between the remaining patches that are large fires in this region, and climate discreteness and significance elements at least 75 ac (30 ha) in size exceeds the change projections indicate a likely of the DPS policy and therefore qualifies known dispersal distances of red tree increase in both fire risk and fire size. as a DPS under our policy. We further voles, and the difference is even greater At present, red tree voles are thus find that listing the North Oregon Coast for patches that are more than 500 ac largely without available refugia to DPS of the red tree vole is warranted. (202 ha) in size. sustain the population in the face of However, listing the North Oregon Coast The narrow habitat requirements, low events such as severe, large-scale fires. DPS of the red tree vole is precluded by mobility, low reproductive potential, Under these conditions, red tree voles in higher priority listing actions at this and low dispersal ability of red tree the North Oregon Coast DPS are time, as discussed in the Preclusion and voles limits their movement among unlikely to experience the habitat Expeditious Progress section below. existing patches of remnant habitat, and connectivity and redundancy needed to Although quantitative data are not analysis of remaining large patches of sustain their populations over the long available to estimate red tree vole potentially suitable habitat suggests that term. Based on the above evaluation, we populations, comparing past collection populations of red tree voles in the DPS conclude that the threats of continued efforts with recent surveys leads us to likely are largely isolated from one fragmentation and isolation of older conclude that tree voles are another. This information, in forest habitats, as potentially substantially more difficult to find now conjunction with evidence that the exacerbated by the environmental than they were historically. In some older forest habitats associated with red effects of climate change, and the areas within the DPS, red tree voles are tree voles are highly fragmented and isolation of populations and now not found, or are scarce, where restricted in size, leads us to conclude consequences of small population size they were formerly relatively abundant. that remaining populations of red tree pose a significant threat to the red tree This information, in conjunction with voles are likely small in size. vole within the North Oregon Coast the knowledge that red tree voles are Furthermore, with little or no exchange DPS. We did not have sufficient closely associated with older forest of individuals between them, these evidence to suggest that Swiss needle habitats and strong quantitative data
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showing an unprecedented loss of older remaining red tree vole habitat in the patches within the DPS onto the amount forest habitat in the Oregon Coast Range DPS is, and will continue to be, limited of tree vole habitat estimated within the Province, insufficient area of remaining to Federal lands. Federal lands make up DPS (Dunk 2009, p. 7) indicates only late-successional old-growth habitat, less than a quarter of the area within the about 6 percent of the DPS is in a and large distances between those DPS, and are limited to two disparate condition of suitable habitat in patches remaining older forest patches that clusters of land. Although 62 percent of large enough to provide for tree voles, exceed known dispersal distances of the Federal ownership in the DPS is and this analysis is considered a likely tree voles, leads us to conclude that tree currently managed under the NWFP and overestimate of tree vole habitat. vole populations have substantially the WOPR to develop and maintain late- Clearly, existing and projected amounts declined from past levels. Whereas, the successional conditions that would be of older conifer forest habitat conducive literature provides multiple examples of conducive to red tree vole habitat, only to red tree vole persistence are less than voles nesting in younger stands, 30 percent of these Federal lands are the amounts projected to have occurred virtually all analyses comparing vole currently estimated to provide suitable historically and with which tree voles nest presence or relative abundance of habitat for red tree voles (Dunk 2009, have evolved. High-quality older forest nests in younger versus older stands pp. 5, 7). Even if the entire Federal habitat remains in isolated fragments, have shown an increased use or ownership provided older forest habitat most of which are too small to support selection of older stands. Alhough the conducive to red tree vole occupation, tree voles, and are so widely separated role of younger stands is unclear, in this would still represent a significant as to be likely well beyond the dispersal weighing the available evidence, reduction of older forest habitat based capability of the species. Unlike including a recent modeling effort on estimates from simulations of forest historical conditions, which were highly specific to habitat suitability for red tree conditions in the Coast Range Province stochastic, these changes are likely to be voles, we conclude that older forests are during the past 3,000 years (Wimberly et permanent. Based on our analysis of necessary habitat for red tree voles and al. 2000, pp. 173–175; Nonaka and best available information, we conclude that younger stands will rarely Spies 2005, p. 1740). Although much of the remaining high-quality habitat substitute as habitat in the complete this loss was historical, it led to the within the DPS is likely insufficient to absence of older stands. However, we present condition of insufficient habitat support red tree voles over the long recognize that younger stands may for red tree voles today; at present, less term, and persists in a fragmented and facilitate dispersal or short-term than 1 percent of the habitat within the isolated condition that renders local persistence in landscapes where older DPS is in the condition for which red populations of red tree voles vulnerable forests are isolated or infrequent. tree voles showed the greatest strength to extirpation or extinction through a Amounts of older forest habitat within of selection for nesting, and nearly 90 variety of processes, including genetic the Coast Range Province have been percent of the DPS is in a condition stochasticity, demographic stochasticity, reduced below historical levels, avoided by red tree voles. Most of the environmental stochasticity, and natural primarily through timber harvest lands in the nearly 80 percent of the catastrophes. (Wimberley et al. 2000, p. 176). The DPS under State and private ownership The significant historical losses of occurrence of forest structural are managed for timber production. older forest with the late-successional conditions outside of the historical Although regulatory mechanisms exist characteristics selected by red tree range of variability may not in itself be that are intended to provide for the voles, in conjunction with ongoing practices that maintain the remaining a problem with respect to red tree vole conservation of wildlife and habitats persistence, considering their patches of older forest in a highly during the course of timber harvest persistence through historical large- fragmented and isolated condition by activities on private and State lands, the scale fires that removed habitat. managing the surrounding younger habitat requirements and life-history However, the frequency and duration of forest stands on short-rotation characteristics of the red tree vole are those conditions outside the historical schedules, pose a threat to the such that these regulatory mechanisms range of variability will ultimately affect persistence of the North Oregon Coast are inadequate to prevent the ongoing the persistence of the red tree vole. DPS of the red tree vole through the modification, fragmentation, and Historically, old-growth forest (greater destruction, modification, or isolation of red tree vole habitat on than 200 years old) was well dispersed curtailment of its habitat or range. these lands. (Wimberly et al. 2004, p. 152) within the Furthermore, barring a significant Oregon Coast Province and there were Our own analysis of NWFP data change in the Oregon Forest Practices large tracts of suitable habitat that demonstrates the fragmentation and Rules and Act, loss, modification, and served as refugia in which tree voles isolation of large patches of older forest fragmentation of red tree vole habitat is could persist while adjacent disturbed remain within the DPS. Fifty-nine likely to continue on most of the 62 areas grew into habitat (Wimberley et al. percent of the LSOG within the DPS percent of the DPS that is privately 2000, p. 177). Such areas likely served comprised patches greater than 75 ac owned. Forecasts for State forest land, as source areas to recolonize newly (30 ha), the minimum stand size in which makes up almost all of the 16 developed habitats (Pulliam 1988, pp. which tree voles are found, and the percent of the DPS in State ownership, 658–660; Dias 1996, p. 326). However, average distance between these patches are to manage 15 to 25 percent of their if the amount or duration of unsuitable exceeds the known dispersal limits of land in older forest structure, with habitat exceeds the ability of the species tree voles (USFWS 2010, unpublished another 15 to 25 percent to be managed to persist in refugia and ultimately data). Furthermore, the criteria used to as layered forest structure. However, it recolonize available areas, the species define the initial dataset of late- is expected to take 70 years before may eventually be extirpated. Hence, successional forest used in our analysis reaching these amounts, with only 8 the longer habitat stays in an unsuitable includes forest conditions that are not percent of the State lands currently condition, the greater the risk to the suitable for red tree voles (e.g., low existing in these structural conditions. population (Wimberly et al. 2000, p. canopy cover, predominant hardwood Active management via thinning to 177). cover), so these results are overestimates reach these targeted structures, while Under current management of habitat remaining for red tree voles. potentially developing suitable tree vole conditions, the vast majority of Finally, applying the proportion of large habitat in the long term, may further
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limit the potential for well-connected have little potential to contribute to the In summary, several threats, tree vole populations in the ensuing 70 overall persistence of the DPS under combined with the limited ability of the years. Current regulations on private current conditions of habitat red tree vole to respond to those threats, and State lands provide for timber fragmentation. Population connectivity contribute to our finding that the North harvest on relatively short rotation is thus a particular concern given the Oregon Coast DPS of the red tree vole schedules; this contributes to the species’ reduced numbers, habitat is in danger of extinction now or in the modification of older forest habitat, and specialization and limited dispersal foreseeable future. Older forest habitats maintains forest in a low-quality capabilities, combined with the limited that provide for red tree voles are condition for red tree voles. Although distribution of older forests located limited and highly fragmented, while some incidental benefits may accrue to primarily on Federal land within the ongoing forest practices in much of the individual red tree voles from the range of the red tree vole (USDA and DPS maintain the remaining patches of buffers put in place to protect habitat USDI 2000a, p. 186). Even on the cluster older forest in a highly fragmented and and targeted wildlife species under the of Federal lands north of Highway 20, isolated condition by managing the Forest Practices Rules, in general the remaining habitat has been deemed surrounding younger forest stands on patches of forest remaining under these insufficient to support stable short-rotation schedules. Existing guidelines are too small and isolated to populations of red tree voles (USDA and regulatory mechanisms on private and provide for the persistence of red tree USDI 2007, pp. 291–292). Finally, though the precise effects of State lands result in the maintenance of voles. In some harvest units, the this condition on most of their regulations require the retention of only environmental changes resulting from climate change on red tree vole habitat ownership. Although a portion of the two trees per ac (0.8 trees per ha), and State forest land will be managed the size of these trees is well below that are unknown, the projected increase in size and severity of forest disturbance towards older forest structure, it is normally used by red tree voles. The expected to take 70 years before linear perpendicular extent of tree vectors such as fire and pathogens are expected to further reduce and isolate reaching these conditions. Red tree vole retention along fishbearing streams populations within the North Oregon under the State regulations is habitat and tree vole populations. In Coast DPS appear to be relatively small dramatically less (about one-fifteenth) addition, projected shifts in the range of and isolated. Multiple features of red than that conserved under Federal species to the north and to increased tree vole biology and life history limit regulations. The scarcity of red tree elevations would further reduce the their ability to respond to the above voles throughout much of the DPS available habitat for the red tree vole, noted habitat loss and alteration. These where they were formerly found with given that it is already at its northern ease further suggests the forest areas and elevational limit within the North features include small home ranges, retained under the existing regulatory Oregon Coast DPS. Therefore, we have limited dispersal distances, low mechanisms are insufficient to support additionally found that the North reproductive potential relative to other persistent tree vole populations or Oregon Coast DPS of the red tree vole closely related rodents, a reluctance to successful dispersal and recolonization. is threatened by the exacerbating effects cross large openings, and likely Finally, unlike on Federal lands, there of other natural or manmade factors increased exposure to predation in are no mechanisms in place on private affecting its continued existence. certain habitat conditions (e.g. younger Given the threats described above, we or State lands to survey for tree voles stands or in areas with insufficient find that the North Oregon Coast DPS of and manage for sites that are located. canopy cover that forces voles to leave the red tree vole is in danger of We have therefore found existing trees and travel on the ground). Such extinction now or in the foreseeable life history characteristics make it regulatory mechanisms on private and future and therefore warrants listing. We State lands inadequate to provide for the difficult for red tree voles to persist in have considered time spans of several or recolonize already isolated habitat conservation of the red tree vole within projections of forest conditions and the DPS. patches. Although some land associated tree vole response and other management allocations within the DPS The current presumed limited measures of biodiversity to determine call for developing older forest population size and distribution of the how far into the future is reasonably conditions that may provide habitat for red tree vole within a small portion of foreseeable. Trends in timber harvest the red tree vole, it will be decades the DPS makes the species particularly and biodiversity in the Oregon Coast vulnerable to random environmental Range are projected for the next century before those areas attain those disturbances such as fires. Evidence (Johnson et al. 2007, entire; Spies et al. conditions. In the interim, the red tree from past fire events indicates that stand 2007a, b, entire). Although older forest vole remains vulnerable to random replacement fires have historically structure is expected to develop on environmental disturbances that may occurred in this area large enough that, some areas of State land and in those remove or further isolate large blocks of if fires of similar size were to occur now Federal land allocations managed for already limited habitat (e.g. large wind or in the foreseeable future, could late-successional conditions, existing storms or stand-replacing fire events). eliminate most, if not all, of the largest stands are in a variety of age and Finally, small and isolated populations patches of remaining high-quality older structural stages and it will be several such as the red tree vole are more forest habitat in the DPS. This is of decades before those stands develop vulnerable to extirpation within the DPS particular concern since the stronghold older forest structure and late- due to a variety of factors including loss of the red tree vole population in this successional conditions. For example, of genetic variability, inbreeding DPS is likely concentrated in a single on State lands, it is estimated that it will depression, and demographic cluster of Federal lands south of take at least 70 years to develop the stochasticity. Because of the existing Highway 20, and the potential loss of targeted amounts of forest complexity habitat conditions, the limited ability of the high quality habitat on these lands (ODF 2010c, p. I–13). Congruent with the red tree vole to persist in much of to an event such as a fire would remove the time spans stated above, we have the DPS, and its vulnerability in the the greatest source population of red determined the foreseeable future for foreseeable future until habitat tree voles in the DPS. Other populations the red tree vole to be approximately 70 conditions improve, we find that the are more fragmented and isolated and to 100 years. North Oregon Coast DPS of the red tree
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vole is in danger of extinction now or Federal lands, where more of the obtaining, reviewing, and evaluating in the foreseeable future. existing tree vole habitat is likely to public comments and peer review We reviewed the available remain. For example, our analysis comments on proposed rules and information to determine if the existing indicates that remaining forested habitat incorporating relevant information into and foreseeable threats render the DPS on Federal lands provides a measure of final rules. The number of listing at risk of extinction now such that security to extant vole populations. actions that we can undertake in a given issuing an emergency regulation Although timber harvest across the DPS year also is influenced by the temporarily listing the species under is a concern, the loss of suitable vole complexity of those listing actions; that section 4(b)(7) of the Act is warranted. habitat to timber harvest has declined, is, more complex actions generally are We have determined that issuing an and the current status of the species more costly. The median cost for emergency regulation temporarily may reflect a lag effect from previous preparing and publishing a 90-day listing the species is not warranted for timber harvest. At the same time, much finding is $39,276; for a 12-month the North Oregon Coast DPS of the red of the Federal forested lands are finding, $100,690; for a proposed rule tree vole at this time, because voles are growing toward older conditions and with critical habitat, $345,000; and for currently distributed across multiple management of these lands is targeted a final listing rule with critical habitat, areas within the DPS and we do not toward increasing the older forest $305,000. believe there are any potential threats of condition of the landscape. In We cannot spend more than is such great immediacy, severity, or scope consideration of all these factors, we appropriated for the Listing Program that would simultaneously threaten all find the magnitude of threats to be without violating the Anti-Deficiency of the known populations with the moderate to low. We consider all of Act (see 31 U.S.C. 1341(a)(1)(A)). In imminent risk of extinction. However, if these threats imminent because they are addition, in FY 1998 and for each fiscal at any time we determine that an currently occurring within the DPS. year since then, Congress has placed a emergency regulation temporarily Preclusion and Expeditious Progress statutory cap on funds that may be listing of the North Oregon Coast DPS of expended for the Listing Program, equal Preclusion is a function of the listing the red tree vole is warranted, we will to the amount expressly appropriated priority of a species in relation to the initiate this action at that time. for that purpose in that fiscal year. This resources that are available and the cost cap was designed to prevent funds Listing Priority Number and relative priority of competing appropriated for other functions under The Service adopted guidelines on demands for those resources. Thus, in September 21, 1983 (48 FR 43098) to any given fiscal year (FY), multiple the Act (for example, recovery funds for establish a rational system for utilizing factors dictate whether it will be removing species from the Lists), or for available appropriations to the highest possible to undertake work on a listing other Service programs, from being used priority species when adding species to proposal regulation or whether for Listing Program actions (see House the Lists of Endangered or Threatened promulgation of such a proposal is Report 105–163, 105th Congress, 1st Wildlife and Plants or reclassifying precluded by higher priority listing Session, July 1, 1997). threatened species to endangered status. actions. Since FY 2002, the Service’s budget These guidelines, titled ‘‘Endangered The resources available for listing has included a critical habitat subcap to and Threatened Species Listing and actions are determined through the ensure that some funds are available for Recovery Priority Guidelines’’ address annual Congressional appropriations other work in the Listing Program (‘‘The the immediacy and magnitude of process. The appropriation for the critical habitat designation subcap will threats, and the level of taxonomic Listing Program is available to support ensure that some funding is available to distinctiveness by assigning priority in work involving the following listing address other listing activities’’ (House descending order to monotypic genera actions: Proposed and final listing rules; Report No. 107–103, 107th Congress, 1st (genus with one species), full species, 90-day and 12-month findings on Session, June 19, 2001)). In FY 2002 and and subspecies (or equivalently, distinct petitions to add species to the Lists of each year until FY 2006, the Service has population segments of vertebrates). The Endangered and Threatened Wildlife had to use virtually the entire critical lower the listing priority number (LPN), and Plants (Lists) or to change the status habitat subcap to address court- the higher the listing priority (that is, a of a species from threatened to mandated designations of critical species with an LPN of 1 would have endangered; annual ‘‘resubmitted’’ habitat, and consequently none of the the highest listing priority). petition findings on prior warranted- critical habitat subcap funds have been As a result of our analysis of the best but-precluded petition findings as available for other listing activities. In available scientific and commercial required under section 4(b)(3)(C)(i) of some FYs since 2006, we have been able information, we assigned the North the Act; critical habitat petition to use some of the critical habitat Oregon Coast DPS of the red tree vole findings; proposed and final rules subcap funds to fund proposed listing an LPN of 9, based on our finding that designating critical habitat; and determinations for high-priority the DPS faces threats that are imminent litigation-related, administrative, and candidate species. In other FYs, while and of moderate to low magnitude, program-management functions we were unable to use any of the critical including the present or threatened (including preparing and allocating habitat subcap funds to fund proposed destruction, modification, or budgets, responding to Congressional listing determinations, we did use some curtailment of its habitat; the and public inquiries, and conducting of this money to fund the critical habitat inadequacy of existing regulatory public outreach regarding listing and portion of some proposed listing mechanisms; and the impacts of chance critical habitat). The work involved in determinations so that the proposed environmental and demographic events preparing various listing documents can listing determination and proposed on an already isolated population. We be extensive and may include, but is not critical habitat designation could be consider the threat magnitude moderate limited to: Gathering and assessing the combined into one rule, thereby being because, although the entire population best scientific and commercial data more efficient in our work. At this time, is experiencing threats, the impact of available and conducting analyses used for FY 2011, we plan to use some of the those threats is more pronounced on as the basis for our decisions; writing critical habitat subcap funds to fund private and State ownerships than on and publishing documents; and proposed listing determinations.
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We make our determinations of determinations be completed by a of a species (subspecies, or distinct preclusion on a nationwide basis to specific date; section 4 (of the Act) population segment)). The lower the ensure that the species most in need of listing actions with absolute statutory listing priority number, the higher the listing will be addressed first and also deadlines; essential litigation-related, listing priority (that is, a species with an because we allocate our listing budget administrative, and listing program- LPN of 1 would have the highest listing on a nationwide basis. Through the management functions; and high- priority). listing cap, the critical habitat subcap, priority listing actions for some of our Because of the large number of high- and the amount of funds needed to candidate species. In FY 2010, the priority species, we have further ranked address court-mandated critical habitat Service received many new petitions the candidate species with an LPN of 2 designations, Congress and the courts and a single petition to list 404 species. by using the following extinction-risk have in effect determined the amount of The receipt of petitions for a large type criteria: International Union for the money available for other listing number of species is consuming the Conservation of Nature and Natural activities nationwide. Therefore, the Service’s listing funding that is not Resources (IUCN) Red list status/rank, funds in the listing cap, other than those dedicated to meeting court-ordered Heritage rank (provided by needed to address court-mandated commitments. Absent some ability to NatureServe), Heritage threat rank critical habitat for already listed species, balance effort among listing duties (provided by NatureServe), and species set the limits on our determinations of under existing funding levels, the currently with fewer than 50 preclusion and expeditious progress. Service is only able to initiate a few new individuals, or 4 or fewer populations. Congress identified the availability of listing determinations for candidate Those species with the highest IUCN resources as the only basis for deferring species in FY 2011. rank (critically endangered), the highest the initiation of a rulemaking that is In 2009, the responsibility for listing Heritage rank (G1), the highest Heritage warranted. The Conference Report foreign species under the Act was threat rank (substantial, imminent accompanying Public Law 97–304 transferred from the Division of threats), and currently with fewer than (Endangered Species Act Amendments Scientific Authority, International 50 individuals, or fewer than 4 of 1982), which established the current Affairs Program, to the Endangered populations, originally comprised a statutory deadlines and the warranted- Species Program. Therefore, starting in group of approximately 40 candidate but-precluded finding, states that the FY 2010, we used a portion of our species (‘‘Top 40’’). These 40 candidate amendments were ‘‘not intended to funding to work on the actions species have had the highest priority to allow the Secretary to delay described above for listing actions receive funding to work on a proposed commencing the rulemaking process for related to foreign species. In FY 2011, listing determination. As we work on any reason other than that the existence we anticipate using $1,500,000 for work proposed and final listing rules for those of pending or imminent proposals to list on listing actions for foreign species, 40 candidates, we apply the ranking species subject to a greater degree of which reduces funding available for criteria to the next group of candidates threat would make allocation of domestic listing actions; however, with an LPN of 2 and 3 to determine the resources to such a petition [that is, for currently only $500,000 has been next set of highest priority candidate a lower-ranking species] unwise.’’ allocated for this function. Although species. Finally, proposed rules for Although that statement appeared to there are no foreign species issues reclassification of threatened species to refer specifically to the ‘‘to the included in our high-priority listing endangered species are lower priority, maximum extent practicable’’ limitation actions at this time, many actions have because as listed species, they are on the 90-day deadline for making a statutory or court-approved settlement already afforded the protections of the ‘‘substantial information’’ finding, that deadlines, thus increasing their priority. Act and implementing regulations. finding is made at the point when the The budget allocations for each specific However, for efficiency reasons, we may Service is deciding whether or not to listing action are identified in the choose to work on a proposed rule to commence a status review that will Service’s FY 2011 Allocation Table (part reclassify a species to endangered if we determine the degree of threats facing of our record). can combine this with work that is the species, and therefore the analysis For the above reasons, funding a subject to a court-determined deadline. underlying the statement is more proposed listing determination for the With our workload so much bigger relevant to the use of the warranted-but- North Oregon Coast DPS of the red tree than the amount of funds we have to precluded finding, which is made when vole is precluded by court-ordered and accomplish it, it is important that we be the Service has already determined the court-approved settlement agreements, as efficient as possible in our listing degree of threats facing the species and listing actions with absolute statutory process. Therefore, as we work on is deciding whether or not to commence deadlines, and work on proposed listing proposed rules for the highest priority a rulemaking. determinations for those candidate species in the next several years, we are In FY 2011, on April 15, 2011, species with a higher listing priority preparing multi-species proposals when Congress passed the Full-Year (i.e., candidate species with LPNs of appropriate, and these may include Continuing Appropriations Act (Pub. L. 1–8). species with lower priority if they 112–10), which provides funding Based on our September 21, 1983, overlap geographically or have the same through September 30, 2011. The guidelines for assigning an LPN for each threats as a species with an LPN of 2. Service has $20,902,000 for the listing candidate species (48 FR 43098), we In addition, we take into consideration program. Of that, $9,472,000 is being have a significant number of species the availability of staff resources when used for determinations of critical with a LPN of 2. Using these guidelines, we determine which high-priority habitat for already listed species. Also we assign each candidate an LPN of 1 species will receive funding to $500,000 is appropriated for foreign to 12, depending on the magnitude of minimize the amount of time and species listings under the Act. The threats (high or moderate to low), resources required to complete each Service thus has $10,930,000 available immediacy of threats (imminent or listing action. to fund work in the following categories: nonimminent), and taxonomic status of As explained above, a determination Compliance with court orders and the species (in order of priority: that listing is warranted but precluded court-approved settlement agreements monotypic genus (a species that is the must also demonstrate that expeditious requiring that petition findings or listing sole member of a genus); species; or part progress is being made to add and
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remove qualified species to and from for those funds. (Although we do not Program. So far during FY 2011, we the Lists of Endangered and Threatened discuss it in detail here, we are also have completed delisting rules for three Wildlife and Plants. As with our making expeditious progress in species.) Given the limited resources ‘‘precluded’’ finding, the evaluation of removing species from the list under the available for listing, we find that we are whether progress in adding qualified Recovery program in light of the making expeditious progress in FY 2011 species to the Lists has been expeditious resource available for delisting, which is in the Listing Program. This progress is a function of the resources available funded by a separate line item in the included preparing and publishing the for listing and the competing demands budget of the Endangered Species following determinations:
FY 2011 COMPLETED LISTING ACTIONS
Publication date Title Actions FR pages
10/6/2010 ...... Endangered Status for the Altamaha Spinymussel and Designa- Proposed Listing Endangered ... 75 FR 61664–61690. tion of Critical Habitat. 10/7/2010 ...... 12-Month Finding on a Petition to list the Sacramento Splittail as Notice of 12-month petition find- 75 FR 62070–62095. Endangered or Threatened. ing, Not warranted. 10/28/2010 ...... Endangered Status and Designation of Critical Habitat for Proposed Listing Endangered 75 FR 66481–66552. Spikedace and Loach Minnow. (uplisting). 11/2/2010 ...... 90-Day Finding on a Petition to List the Bay Springs Sala- Notice of 90-day Petition Find- 75 FR 67341–67343. mander as Endangered. ing, Not substantial. 11/2/2010 ...... Determination of Endangered Status for the Georgia Pigtoe Final Listing Endangered ...... 75 FR 67511–67550. Mussel, Interrupted Rocksnail, and Rough Hornsnail and Des- ignation of Critical Habitat. 11/2/2010 ...... Listing the Rayed Bean and Snuffbox as Endangered ...... Proposed Listing Endangered ... 75 FR 67551–67583. 11/4/2010 ...... 12-Month Finding on a Petition to List Cirsium wrightii (Wright’s Notice of 12-month petition find- 75 FR 67925–67944. Marsh Thistle) as Endangered or Threatened. ing, Warranted but precluded. 12/14/2010 ...... Endangered Status for Dunes Sagebrush Lizard ...... Proposed Listing Endangered ... 75 FR 77801–77817. 12/14/2010 ...... 12-Month Finding on a Petition to List the North American Wol- Notice of 12-month petition find- 75 FR 78029–78061. verine as Endangered or Threatened. ing, Warranted but precluded. 12/14/2010 ...... 12-Month Finding on a Petition to List the Sonoran Population of Notice of 12-month petition find- 75 FR 78093–78146. the Desert Tortoise as Endangered or Threatened. ing, Warranted but precluded. 12/15/2010 ...... 12-Month Finding on a Petition to List Astragalus microcymbus Notice of 12-month petition find- 75 FR 78513–78556. and Astragalus schmolliae as Endangered or Threatened. ing, Warranted but precluded. 12/28/2010 ...... Listing Seven Brazilian Bird Species as Endangered Throughout Final Listing Endangered ...... 75 FR 81793–81815. Their Range. 1/4/2011 ...... 90-Day Finding on a Petition to List the Red Knot subspecies Notice of 90-day Petition Find- 76 FR 304–311. Calidris canutus roselaari as Endangered. ing, Not substantial. 1/19/2011 ...... Endangered Status for the Sheepnose and Spectaclecase Mus- Proposed Listing Endangered ... 76 FR 3392–3420. sels. 2/10/2011 ...... 12-Month Finding on a Petition to List the Pacific Walrus as En- Notice of 12-month petition find- 76 FR 7634–7679. dangered or Threatened. ing, Warranted but precluded. 2/17/2011 ...... 90-Day Finding on a Petition To List the Sand Verbena Moth as Notice of 90-day Petition Find- 76 FR 9309–9318. Endangered or Threatened. ing, Substantial. 2/22/2011 ...... Determination of Threatened Status for the New Zealand-Aus- Final Listing Threatened ...... 76 FR 9681–9692. tralia Distinct Population Segment of the Southern Rockhopper Penguin. 2/22/2011 ...... 12-Month Finding on a Petition to List Solanum conocarpum Notice of 12-month petition find- 76 FR 9722–9733. (marron bacora) as Endangered. ing, Warranted but precluded. 2/23/2011 ...... 12-Month Finding on a Petition to List Thorne’s Hairstreak But- Notice of 12-month petition find- 76 FR 9991–10003. terfly as Endangered. ing, Not warranted. 2/23/2011 ...... 12-Month Finding on a Petition to List Astragalus hamiltonii, Notice of 12-month petition find- 76 FR 10166–10203. Penstemon flowersii, Eriogonum soredium, Lepidium ostleri, ing, Warranted but precluded and Trifolium friscanum as Endangered or Threatened. & Not Warranted. 2/24/2011 ...... 90-Day Finding on a Petition to List the Wild Plains Bison or Notice of 90-day Petition Find- 76 FR 10299–10310. Each of Four Distinct Population Segments as Threatened. ing, Not substantial. 2/24/2011 ...... 90-Day Finding on a Petition to List the Unsilvered Fritillary But- Notice of 90-day Petition Find- 76 FR 10310–10319. terfly as Threatened or Endangered. ing, Not substantial. 3/8/2011 ...... 12-Month Finding on a Petition to List the Mt. Charleston Blue Notice of 12-month petition find- 76 FR 12667–12683. Butterfly as Endangered or Threatened. ing, Warranted but precluded. 3/8/2011 ...... 90-Day Finding on a Petition to List the Texas Kangaroo Rat as Notice of 90-day Petition Find- 76 FR 12683–12690. Endangered or Threatened. ing, Substantial. 3/10/2011 ...... Initiation of Status Review for Longfin Smelt ...... Notice of Status Review ...... 76 FR 13121–13122. 3/15/2011 ...... Withdrawal of Proposed Rule to List the Flat-tailed Horned Liz- Proposed rule withdrawal ...... 76 FR 14210–14268. ard as Threatened. 3/15/2011 ...... Proposed Threatened Status for the Chiricahua Leopard Frog Proposed Listing Threatened; 76 FR 14126–14207. and Proposed Designation of Critical Habitat. Proposed Designation of Crit- ical Habitat. 3/22/2011 ...... 12-Month Finding on a Petition to List the Berry Cave Sala- Notice of 12-month petition find- 76 FR 15919–15932. mander as Endangered. ing, Warranted but precluded. 4/1/2011 ...... 90-Day Finding on a Petition to List the Spring Pygmy Sunfish Notice of 90-day Petition Find- 76 FR 18138–18143. as Endangered. ing, Substantial. 4/5/2011 ...... 12-Month Finding on a Petition to List the Bearmouth Notice of 12-month petition find- 76 FR 18684–18701. Mountainsnail, Byrne Resort Mountainsnail, and Meltwater ing, Not Warranted and War- Lednian Stonefly as Endangered or Threatened. ranted but precluded.
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FY 2011 COMPLETED LISTING ACTIONS—Continued
Publication date Title Actions FR pages
4/5/2011 ...... 90-Day Finding on a Petition To List the Peary Caribou and Dol- Notice of 90-day Petition Find- 76 FR 18701–18706. phin and Union population of the Barren-ground Caribou as ing, Substantial. Endangered or Threatened. 4/12/2011 ...... Proposed Endangered Status for the Three Forks Springsnail Proposed Listing Endangered; 76 FR 20464–20488. and San Bernardino Springsnail, and Proposed Designation of Proposed Designation of Crit- Critical Habitat. ical Habitat. 4/13/2011 ...... 90-Day Finding on a Petition To List Spring Mountains Acastus Notice of 90-day Petition Find- 76 FR 20613–20622. Checkerspot Butterfly as Endangered. ing, Substantial. 4/14/2011 ...... 90-Day Finding on a Petition to List the Prairie Chub as Threat- Notice of 90-day Petition Find- 76 FR 20911–20918. ened or Endangered. ing, Substantial. 4/14/2011 ...... 12-Month Finding on a Petition to List Hermes Copper Butterfly Notice of 12-month petition find- 76 FR 20918–20939. as Endangered or Threatened. ing, Warranted but precluded. 4/26/2011 ...... 90-Day Finding on a Petition to List the Arapahoe Snowfly as Notice of 90-day Petition Find- 76 FR 23256–23265. Endangered or Threatened. ing, Substantial. 4/26/2011 ...... 90-Day Finding on a Petition to List the Smooth-Billed Ani as Notice of 90-day Petition Find- 76 FR 23265–23271. Threatened or Endangered. ing, Not substantial. 5/12/2011 ...... Withdrawal of the Proposed Rule to List the Mountain Plover as Proposed Rule, Withdrawal ...... 76 FR 27756–27799. Threatened. 5/25/2011 ...... 90-Day Finding on a Petition To List the Spot-tailed Earless Liz- Notice of 90-day Petition Find- 76 FR 30082–30087. ard as Endangered or Threatened. ing, Substantial. 5/26/2011 ...... Listing the Salmon-Crested Cockatoo as Threatened Throughout Final Listing Threatened ...... 76 FR 30758–30780. its Range with Special Rule. 5/31/2011 ...... 12-Month Finding on a Petition to List Puerto Rican Harlequin Notice of 12-month petition find- 76 FR 31282–31294. Butterfly as Endangered. ing, Warranted but precluded. 6/2/2011 ...... 90-Day Finding on a Petition to Reclassify the Straight-Horned Notice of 90-day Petition Find- 76 FR 31903–31906. Markhor (Capra falconeri jerdoni) of Torghar Hills as Threat- ing, Substantial. ened. 6/2/2011 ...... 90-Day Finding on a Petition to List the Golden-winged Warbler Notice of 90-day Petition Find- 76 FR 31920–31926. as Endangered or Threatened. ing, Substantial. 6/7/2011 ...... 12-Month Finding on a Petition to List the Striped Newt as Notice of 12-month petition find- 76 FR 32911–32929. Threatened. ing, Warranted but precluded. 6/9/2011 ...... 12-Month Finding on a Petition to List Abronia ammophila, Notice of 12-month petition find- 76 FR 33924–33965. Agrostis rossiae, Astragalus proimanthus, Boechera (Arabis) ing, Not Warranted and War- pusilla, and Penstemon gibbensii as Threatened or Endan- ranted but precluded. gered. 6/21/2011 ...... 90-Day Finding on a Petition to List the Utah Population of the Notice of 90-day Petition Find- 76 FR 36049–36053. Gila Monster as an Endangered or a Threatened Distinct Pop- ing, Not substantial. ulation Segment. 6/21/2011 ...... Revised 90-Day Finding on a Petition To Reclassify the Utah Notice of 90-day Petition Find- 76 FR 36053–36068. Prairie Dog From Threatened to Endangered. ing, Not substantial. 6/28/2011 ...... 12-Month Finding on a Petition to List Castanea pumila var. Notice of 12-month petition find- 76 FR 37706–37716. ozarkensis as Threatened or Endangered. ing, Not warranted. 6/29/2011 ...... 90-Day Finding on a Petition to List the Eastern Small-Footed Notice of 90-day Petition Find- 76 FR 38095–38106. Bat and the Northern Long-Eared Bat as Threatened or En- ing, Substantial. dangered. 6/30/2011 ...... 12-Month Finding on a Petition to List a Distinct Population Seg- Notice of 12-month petition find- 76 FR 38504–38532. ment of the Fisher in Its United States Northern Rocky Moun- ing, Not warranted. tain Range as Endangered or Threatened with Critical Habitat. 7/12/2011 ...... 90-Day Finding on a Petition to List the Bay Skipper as Threat- Notice of 90-day Petition Find- 76 FR 40868–40871. ened or Endangered. ing, Substantial. 7/19/2011 ...... 12-Month Finding on a Petition to List Pinus albicaulis as En- Notice of 12-month petition find- 76 FR 42631–42654. dangered or Threatened with Critical Habitat. ing, Warranted but precluded. 7/19/2011 ...... Petition To List Grand Canyon Cave Pseudoscorpion ...... Notice of 12-month petition find- 76 FR 42654–42658. ing, Not warranted. 7/26/2011 ...... 12-Month Finding on a Petition to List the Giant Palouse Earth- Notice of 12-month petition find- 76 FR 44547–44564. worm (Drilolerius americanus) as Threatened or Endangered. ing, Not warranted. 7/26/2011 ...... 12-Month Finding on a Petition to List the Frigid Ambersnail as Notice of 12-month petition find- 76 FR 44566–44569. Endangered. ing, Not warranted. 7/27/2011 ...... Determination of Endangered Status for Ipomopsis polyantha Final Listing Endangered, 76 FR 45054–45075. (Pagosa Skyrocket) and Threatened Status for Penstemon Threatened. debilis (Parachute Beardtongue) and Phacelia submutica (DeBeque Phacelia). 7/27/2011 ...... 12-Month Finding on a Petition to List the Gopher Tortoise as Notice of 12-month petition find- 76 FR 45130–45162. Threatened in the Eastern Portion of its Range. ing, Warranted but precluded. 8/2/2011 ...... Proposed Endangered Status for the Chupadera Springsnail Proposed Listing Endangered ... 76 FR 46218–46234. (Pyrgulopsis chupaderae) and Proposed Designation of Crit- ical Habitat. 8/2/2011 ...... 90-Day Finding on a Petition to List the Straight Snowfly and Notice of 90-day Petition Find- 76 FR 46238–46251. Idaho Snowfly as Endangered. ing, Not substantial. 8/2/2011 ...... 12-Month Finding on a Petition to List the Redrock Stonefly as Notice of 12-month petition find- 76 FR 46251–46266. Endangered or Threatened. ing, Not warranted.
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FY 2011 COMPLETED LISTING ACTIONS—Continued
Publication date Title Actions FR pages
8/2/2011 ...... Listing 23 Species on Oahu as Endangered and Designating Proposed Listing Endangered ... 76 FR 46362–46594. Critical Habitat for 124 Species. 8/4/2011 ...... 90-Day Finding on a Petition To List Six Sand Dune Beetles as Notice of 90-day Petition Find- 76 FR 47123–47133. Endangered or Threatened. ing, Not substantial and sub- stantial. 8/9/2011 ...... Endangered Status for the Cumberland Darter, Rush Darter, Final Listing Endangered ...... 76 FR 48722–48741. Yellowcheek Darter, Chucky Madtom, and Laurel Dace. 8/9/2011 ...... 12-Month Finding on a Petition to List the Nueces River and Notice of 12-month petition find- 76 FR 48777–48788. Plateau Shiners as Threatened or Endangered. ing, Not warranted. 8/9/2011 ...... Four Foreign Parrot Species [crimson shining parrot, white Proposed Listing Endangered 76 FR 49202–49236. cockatoo, Philippine cockatoo, yellow-crested cockatoo]. and Threatened; Notice of 12- month petition finding, Not warranted. 8/10/2011 ...... Proposed Listing of the Miami Blue Butterfly as Endangered, Proposed Listing Endangered 76 FR 49408–49412. and Proposed Listing of the Cassius Blue, Ceraunus Blue, Similarity of Appearance. and Nickerbean Blue Butterflies as Threatened Due to Simi- larity of Appearance to the Miami Blue Butterfly. 8/10/2011 ...... 90-Day Finding on a Petition To List the Saltmarsh Topminnow Notice of 90-day Petition Find- 76 FR 49412–49417. as Threatened or Endangered Under the Endangered Species ing, Substantial. Act. 8/10/2011 ...... Emergency Listing of the Miami Blue Butterfly as Endangered, Emergency Listing Endangered 76 FR 49542–49567. and Emergency Listing of the Cassius Blue, Ceraunus Blue, Similarity of Appearance. and Nickerbean Blue Butterflies as Threatened Due to Simi- larity of Appearance to the Miami Blue Butterfly. 8/11/2011 ...... Listing Six Foreign Birds as Endangered Throughout Their Final Listing Endangered ...... 76 FR 50052–50080. Range. 8/17/2011 ...... 90-Day Finding on a Petition to List the Leona’s Little Blue But- Notice of 90-day Petition Find- 76 FR 50971–50979. terfly as Endangered or Threatened. ing, Substantial.
Our expeditious progress also statutory timelines, that is, timelines a lower priority if they overlap includes work on listing actions that we required under the Act. Actions in the geographically or have the same threats funded in FY 2010 and FY 2011 but bottom section of the table are high- as the species with the high priority. have not yet been completed to date. priority listing actions. These actions Including these species together in the These actions are listed below. Actions include work primarily on species with same proposed rule results in in the top section of the table are being an LPN of 2, and, as discussed above, considerable savings in time and conducted under a deadline set by a selection of these species is partially funding, when compared to preparing court. Actions in the middle section of based on available staff resources, and separate proposed rules for each of them the table are being conducted to meet when appropriate, include species with in the future.
ACTIONS FUNDED IN FY 2010 AND FY 2011 BUT NOT YET COMPLETED
Species Action
Actions Subject to Court Order/Settlement Agreement
4 parrot species (military macaw, yellow-billed parrot, red-crowned parrot, scarlet macaw) 5 ...... 12-month petition finding. 4 parrot species (blue-headed macaw, great green macaw, grey-cheeked parakeet, hyacinth macaw) 5 ...... 12-month petition finding. Longfin smelt ...... 12-month petition finding.
Actions with Statutory Deadlines
Casey’s june beetle ...... Final listing determination. 5 Bird species from Colombia and Ecuador ...... Final listing determination. Queen Charlotte goshawk ...... Final listing determination. Ozark hellbender 4 ...... Final listing determination. Altamaha spinymussel 3 ...... Final listing determination. 6 Birds from Peru & Bolivia ...... Final listing determination. Loggerhead sea turtle (assist National Marine Fisheries Service) 5 ...... Final listing determination. 2 mussels (rayed bean (LPN = 2), snuffbox No LPN) 5 ...... Final listing determination. CA golden trout 4 ...... 12-month petition finding. Black-footed albatross ...... 12-month petition finding. Mojave fringe-toed lizard 1 ...... 12-month petition finding. Kokanee—Lake Sammamish population 1 ...... 12-month petition finding. Cactus ferruginous pygmy-owl 1 ...... 12-month petition finding. Northern leopard frog ...... 12-month petition finding. Tehachapi slender salamander ...... 12-month petition finding. Coqui Llanero ...... 12-month petition finding/ Proposed listing. Dusky tree vole ...... 12-month petition finding.
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ACTIONS FUNDED IN FY 2010 AND FY 2011 BUT NOT YET COMPLETED—Continued
Species Action
Leatherside chub (from 206 species petition) ...... 12-month petition finding. Platte River caddisfly (from 206 species petition) 5 ...... 12-month petition finding. 3 Texas moths (Ursia furtiva, Sphingicampa blanchardi, Agapema galbina) (from 475 species petition) ...... 12-month petition finding. 3 South Arizona plants (Erigeron piscaticus, Astragalus hypoxylus, Amoreuxia gonzalezii) (from 475 species peti- 12-month petition finding. tion). 5 Central Texas mussel species (3 from 475 species petition) ...... 12-month petition finding. 14 parrots (foreign species) ...... 12-month petition finding. Mohave Ground Squirrel 1 ...... 12-month petition finding. Western gull-billed tern ...... 12-month petition finding. OK grass pink (Calopogon oklahomensis) 1 ...... 12-month petition finding. Ashy storm-petrel 5 ...... 12-month petition finding. Honduran emerald ...... 12-month petition finding. Eagle Lake trout 1 ...... 90-day petition finding. 32 Pacific Northwest mollusks species (snails and slugs) 1 ...... 90-day petition finding. 42 snail species (Nevada & Utah) ...... 90-day petition finding. Spring Mountains checkerspot butterfly ...... 90-day petition finding. 10 species of Great Basin butterfly ...... 90-day petition finding. 404 Southeast species ...... 90-day petition finding. Franklin’s bumble bee 4 ...... 90-day petition finding. American eel 4 ...... 90-day petition finding. Aztec gilia 5 ...... 90-day petition finding. White-tailed ptarmigan 5 ...... 90-day petition finding. San Bernardino flying squirrel 5 ...... 90-day petition finding. Bicknell’s thrush 5 ...... 90-day petition finding. Sonoran talussnail 5 ...... 90-day petition finding. 2 AZ Sky Island plants (Graptopetalum bartrami & Pectis imberbis) 5 ...... 90-day petition finding. I’iwi 5 ...... 90-day petition finding. Humboldt marten ...... 90-day petition finding. Desert massasauga ...... 90-day petition finding. Western glacier stonefly (Zapada glacier) ...... 90-day petition finding. Thermophilic ostracod (Potamocypris hunteri) ...... 90-day petition finding. Sierra Nevada red fox 5 ...... 90-day petition finding. Boreal toad (eastern or southern Rocky Mtn population) 5 ...... 90-day petition finding.
High-Priority Listing Actions
20 Maui-Nui candidate species 2 (17 plants, 3 tree snails) (14 with LPN = 2, 2 with LPN = 3, 3 with LPN = 8) ...... Proposed listing. 8 Gulf Coast mussels (southern kidneyshell (LPN = 2), round ebonyshell (LPN = 2), Alabama pearlshell (LPN = Proposed listing. 2), southern sandshell (LPN = 5), fuzzy pigtoe (LPN = 5), Choctaw bean (LPN = 5), narrow pigtoe (LPN = 5), and tapered pigtoe (LPN = 11)) 4. Umtanum buckwheat (LPN = 2) and white bluffs bladderpod (LPN = 9) 4 ...... Proposed listing. Grotto sculpin (LPN = 2) 4 ...... Proposed listing. 2 Arkansas mussels (Neosho mucket (LPN = 2) & Rabbitsfoot (LPN = 9)) 4 ...... Proposed listing. Diamond darter (LPN = 2) 4 ...... Proposed listing. Gunnison sage-grouse (LPN = 2) 4 ...... Proposed listing. Coral Pink Sand Dunes Tiger Beetle (LPN = 2) 5 ...... Proposed listing. Lesser prairie chicken (LPN = 2) ...... Proposed listing. 4 Texas salamanders (Austin blind salamander (LPN = 2), Salado salamander (LPN = 2), Georgetown sala- Proposed listing. mander (LPN = 8), Jollyville Plateau (LPN = 8)) 3. 5 SW aquatics (Gonzales Spring Snail (LPN = 2), Diamond Y springsnail (LPN = 2), Phantom springsnail (LPN = Proposed listing. 2), Phantom Cave snail (LPN = 2), Diminutive amphipod (LPN = 2)) 3. 2 Texas plants (Texas golden gladecress (Leavenworthia texana) (LPN = 2), Neches River rose-mallow (Hibiscus Proposed listing. dasycalyx) (LPN = 2)) 3. 4 AZ plants (Acuna cactus (Echinomastus erectocentrus var. acunensis) (LPN = 3), Fickeisen plains cactus Proposed listing. (Pediocactus peeblesianus fickeiseniae) (LPN = 3), Lemmon fleabane (Erigeron lemmonii) (LPN = 8), Gierisch mallow (Sphaeralcea gierischii) (LPN = 2)) 5. FL bonneted bat (LPN = 2) 3 ...... Proposed listing. 3 Southern FL plants (Florida semaphore cactus (Consolea corallicola) (LPN = 2), shellmound applecactus Proposed listing. (Harrisia (=Cereus) aboriginum (=gracilis)) (LPN = 2), Cape Sable thoroughwort (Chromolaena frustrata) (LPN = 2)) 5. 21 Big Island (HI) species 5 (includes 8 candidate species—6 plants & 2 animals; 4 with LPN = 2, 1 with LPN = Proposed listing. 3, 1 with LPN = 4, 2 with LPN = 8). 12 Puget Sound prairie species (9 subspecies of pocket gopher (Thomomys mazama ssp.) (LPN = 3), streaked Proposed listing. horned lark (LPN = 3), Taylor’s checkerspot (LPN = 3), Mardon skipper (LPN = 8)) 3. 2 TN River mussels (fluted kidneyshell (LPN = 2), slabside pearlymussel (LPN = 2)) 5 ...... Proposed listing. Jemez Mountain salamander (LPN = 2) 5 ...... Proposed listing. 1 Funds for listing actions for these species were provided in previous FYs. 2 Although funds for these high-priority listing actions were provided in FY 2008 or 2009, due to the complexity of these actions and competing priorities, these actions are still being developed. 3 Partially funded with FY 2010 funds and FY 2011 funds. 4 Funded with FY 2010 funds. 5 Funded with FY 2011 funds.
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We have endeavored to make our new information becomes available. www.regulations.gov and on request listing actions as efficient and timely as This review will determine if a change from the Oregon Fish and Wildlife possible, given the requirements of the in status is warranted, including the Office (see ADDRESSES). relevant law and regulations, and need to make prompt use of emergency Authors constraints relating to workload and listing procedures. personnel. We are continually We intend that any proposed listing The primary authors of this document considering ways to streamline action for the North Oregon Coast DPS are the staff members of the Oregon Fish processes or achieve economies of scale, of the red tree vole will be as accurate and Wildlife Office. such as by batching related actions as possible. Therefore, we will continue Authority together. Given our limited budget for to accept additional information and The authority for this action is the implementing section 4 of the Act, these comments from all concerned Endangered Species Act of 1973, as actions described above collectively governmental agencies, the scientific amended (16 U.S.C. 1531 et seq.). constitute expeditious progress. community, industry, or any other The North Oregon Coast DPS of the interested party concerning this finding. Dated: September 19, 2011. Daniel M. Ashe, red tree vole will be added to the list of References Cited candidate species upon publication of Director, Fish and Wildlife Service. this 12-month finding. We will continue A complete list of all references cited [FR Doc. 2011–25818 Filed 10–12–11; 8:45 am] to monitor the status of this species as is available on the internet at http:// BILLING CODE 4310–55–P
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Part III
Department of Energy
10 CFR Part 1021 National Environmental Policy Act Implementing Procedures; Final Rule
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DEPARTMENT OF ENERGY January 3, 2011 (76 FR 214), to solicit This document adopts the revisions public comments on its proposal to proposed in the Notice of Proposed [Docket ID: DOE–HQ–2010–0002] further revise these regulations by Rulemaking, with certain changes 10 CFR Part 1021 adding new categorical exclusions, discussed below, and amends DOE’s revising existing categorical exclusions, existing regulations at 10 CFR part 1021. RIN 1990–AA34 and making certain other changes. In accordance with 40 CFR 1507.3, CEQ Publication of the Notice of Proposed reviewed this final rule and concluded National Environmental Policy Act Rulemaking began a 45-day public that the proposed amendment of DOE’s Implementing Procedures comment period, scheduled to end on NEPA implementing regulations is in AGENCY: Office of the General Counsel, February 17, 2011, which included a conformance with NEPA and the CEQ U.S. Department of Energy. public hearing on February 4, 2011, at regulations. The Secretary of Energy has ACTION: Final rule. DOE headquarters in Washington, DC. approved this final rule for publication. On February 23, 2011, in response to a Within this document, ‘‘existing rule’’ SUMMARY: The U.S. Department of request from the National Wildlife refers to DOE’s current NEPA Energy (DOE or the Department) is Federation, on behalf of itself and 9 implementing regulations (as last revising its National Environmental other organizations, for additional time modified in 2003, before the revisions Policy Act (NEPA) Implementing to review the proposed rule and submit announced in this document); Procedures. The majority of the changes comments, DOE re-opened the comment ‘‘proposed rule’’ refers to changes are being made to the categorical period until March 7, 2011 (76 FR identified in DOE’s Notice of Proposed exclusion provisions. These revisions 9981). Rulemaking published on January 3, are intended to better align the DOE received comments from private 2011; and ‘‘new rule’’ or ‘‘final rule’’ Department’s regulations, particularly citizens, trade associations, refers to the changes identified in this its categorical exclusions, with DOE’s nongovernmental organizations, Federal document, which will become effective current activities and recent agencies, and a tribal government on November 14, 2011. experiences, and to update the agency. The transcript of the public II. Statement of Purpose provisions with respect to current hearing, a request to extend the technologies and regulatory comment period, and the 29 comment The Department last revised the requirements. DOE is establishing 20 documents received by DOE, including categorical exclusions in its NEPA new categorical exclusions and two documents received after the close implementing regulations in 1996. Since removing two categorical exclusion of the comment period, are available on that time, the range of activities in categories, one environmental the DOE NEPA Web site (http:// which DOE is involved has changed and assessment category, and three energy.gov/nepa) and on the expanded. For example, in recent years, environmental impact statement Regulations.gov Web site (http:// DOE has reviewed thousands of categories. Other changes modify and www.regulations.gov) at docket ID: applications from private entities clarify DOE’s existing provisions. DOE–HQ–2010–0002. requesting financial support for projects DATES: Effective Date: These rule DOE considered all comments to develop new or improved energy changes will become effective received, including those comments on technologies, including for renewable November 14, 2011. categorical exclusions for which DOE energy sources. This experience FOR FURTHER INFORMATION CONTACT: For did not propose any changes. DOE’s highlighted the potential for new and information regarding DOE’s NEPA response to the comments is contained revised categorical exclusions and implementation regulations or general in section IV, Comments Received and helped DOE identify appropriate limits information about DOE’s NEPA DOE’s Responses, below. to include in these categorical procedures, contact Ms. Carol The revisions DOE is making are exclusions to ensure that the activities Borgstrom, Director, Office of NEPA consistent with guidance issued by CEQ described normally would not have the Policy and Compliance, at on establishing, applying, and revising potential for significant environmental [email protected] or 202–586–4600 categorical exclusions under NEPA impact. or leave a message at 800–472–2756. (CEQ, ‘‘Final Guidance for Federal The purpose of this rulemaking is to SUPPLEMENTARY INFORMATION: Departments and Agencies on revise certain provisions of DOE’s NEPA Establishing, Applying, and Revising implementing regulations to better align I. Background Categorical Exclusions Under the DOE’s categorical exclusions with its DOE promulgated its regulations National Environmental Policy Act’’; current activities and its experience and entitled ‘‘National Environmental Policy hereafter, CEQ Categorical Exclusion to bring the provisions up-to-date with Act Implementing Procedures’’ (10 CFR Guidance) (75 FR 75628; December 6, current technology, operational part 1021) on April 24, 1992 (57 FR 2010). On December 29, 2009, DOE practices, and regulatory requirements. 15122), and revised these regulations on initiated its periodic review by The changes will facilitate compliance July 9, 1996 (61 FR 36222), December 6, publishing a Request for Information in with NEPA by providing for more 1996 (61 FR 64603), and August 27, the Federal Register (74 FR 68720) efficient review of actions (for example, 2003 (68 FR 51429). The DOE NEPA (http://www.gpo.gov/fdsys/pkg/FR- helping the Department meet the goals regulations at 10 CFR part 1021 contain 2009-12-29/pdf/E9-30829.pdf) that set forth in the Energy Policy Act of procedures that DOE shall use to sought input from interested parties to 2005), and allowing the Department to comply with section 102(2) of the help identify activities that should be focus its resources on evaluating National Environmental Policy Act considered for new or revised proposed actions that have the potential (NEPA) of 1969 (42 U.S.C. 4332(2)) and categorical exclusions. Moreover, DOE for significant environmental impacts. the Council on Environmental Quality evaluated each of its existing categorical The changes will also increase (CEQ) regulations for implementing the exclusions in preparing these revisions, transparency by providing the public procedural provisions of NEPA (40 CFR and this rulemaking satisfies CEQ’s more specific information as to the parts 1500–1508). DOE published a recommendation for periodic review of circumstances in which DOE is likely to Notice of Proposed Rulemaking on an agency’s categorical exclusions. invoke a categorical exclusion.
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What kinds of changes is DOE making? impact statement implementation plans. comment received during the DOE is amending 10 CFR part 1021, In 1996, DOE removed this requirement, rulemaking, as detailed in section IV, subparts B, C, and D. Most of the and the section number was reserved. Comments Received and DOE’s changes affect the categorical exclusion Therefore, DOE is deleting the reference Responses, below. As CEQ states in its Categorical provisions at 10 CFR part 1021, subpart to § 1021.312 from § 1021.215. Second, Exclusion Guidance, ‘‘Categorical D, appendices A and B. in the Notice of Proposed Rulemaking, DOE is adding 20 new categorical DOE proposed two changes to correct exclusions are not exemptions or waivers of NEPA review; they are exclusions. These categorical exclusions cross-references within § 1021.311. simply one type of NEPA review * * *. address stormwater runoff control; lead- After further consideration, DOE is Once established, categorical exclusions based paint containment, removal, and modifying the proposed change to provide an efficient tool to complete the disposal; drop-off, collection, and § 1021.311(d) to improve clarity by NEPA environmental review process for transfer facilities for recyclable material; deleting the introductory clause, rather proposals that normally do not require determinations of excess real property; than only correcting the cross-reference more resource-intensive EAs small-scale educational facilities; small- in that clause. (As described in the [environmental assessments] or EISs scale indoor research and development Notice of Proposed Rulemaking, DOE is [environmental impact statements]. The projects using nanoscale materials; also revising § 1021.311(f) (i.e., correcting one cross-reference).) Third, use of categorical exclusions can reduce research activities in aquatic paperwork and delay, so that EAs or environments; experimental wells for in the Notice of Proposed Rulemaking, DOE proposed to change the title for the EISs are targeted toward proposed injection of small quantities of carbon actions that truly have the potential to dioxide; combined heat and power or group of categorical exclusions from B4.1 through B4.13. After further cause significant environmental effects’’ cogeneration systems; small-scale (75 FR at 75631). renewable energy research and consideration, DOE is further modifying development and pilot projects; solar the title to ‘‘Categorical Exclusions How does DOE use a categorical photovoltaic systems; solar thermal Applicable to Electric Power and exclusion in its decisionmaking? Transmission.’’ Fourth, a comment from systems; wind turbines; ground source As part of its environmental review Tri-Valley CAREs (at page 1) requested heat pumps; biomass power plants; responsibilities under NEPA, a DOE that DOE not remove the table of methane gas recovery and utilization NEPA Compliance Officer examines an contents from its NEPA regulations (as systems; alternative fuel vehicle fueling individual proposed action to determine proposed in the Notice of Proposed stations; electric vehicle charging whether it qualifies for a categorical Rulemaking), explaining that the table stations; drop-in hydroelectric systems; exclusion. DOE’s process is consistent and small-scale renewable energy of contents is ‘‘extremely useful.’’ In with that described in CEQ’s Categorical research and development and pilot response, DOE is retaining a table of Exclusion Guidance: ‘‘When projects in aquatic environments. These contents in each appendix. These determining whether to use a categorical new categorical exclusions include changes have no regulatory effect. exclusion for a proposed activity, a criteria (e.g., acreage, location, and III. Overview of Categorical Exclusions Federal agency must carefully review height limitations), based on DOE and the description of the proposed action to other agency experience and regulatory What is a categorical exclusion? ensure that it fits within the category of requirements, that limit the covered A categorical exclusion is a category actions described in the categorical actions to those that normally would not (class) of actions that a Federal agency exclusion. Next, the agency must have the potential to cause significant has determined normally do not, consider the specific circumstances impacts. DOE is removing two individually or cumulatively, have a associated with the proposed activity, to categorical exclusion categories, one significant impact on the human rule out any extraordinary environmental assessment category, and environment and for which, therefore, circumstances that might give rise to three environmental impact statement neither an environmental assessment significant environmental effects categories. nor an environmental impact statement requiring further analysis and DOE also is modifying many of the is required. See 40 CFR 1508.4. A documentation’’ in an environmental existing categorical exclusions. These categorical exclusion determination is assessment or environmental impact revisions include substantive changes, made when an agency finds that a statement (75 FR at 75631). changes to update regulatory or particular proposed action fits within a DOE’s existing and new regulations statutory references and requirements, categorical exclusion and meets other ensure that the NEPA Compliance and editorial changes. By ‘‘substantive’’ applicable requirements, including the Officer follows the steps described by changes, DOE means a change that is absence of extraordinary circumstances CEQ. Before DOE may apply a more than a clarifying or consistency (i.e., circumstances in which a normally categorical exclusion to a particular change; this term includes changes that excluded action may have a significant proposed action, DOE must determine alter the scope or meaning of a environmental effect). in accordance with 10 CFR 1021.410(b) provision or that result in the addition DOE establishes categorical that: (1) The proposed action fits within or deletion of a provision. exclusions pursuant to a rulemaking, an established categorical exclusion as DOE is making several minor such as this one, for defined classes of listed in appendix A or B to subpart D, technical and organizational changes in actions that the Department determines (2) there are no extraordinary the final rule, four of which were not are supported by a record showing that circumstances related to the proposal identified at the time of the Notice of they normally will not have significant that may affect the significance of the Proposed Rulemaking. First, after environmental impacts, individually or environmental impacts of the proposed issuing the Notice of Proposed cumulatively. This record is based on action, and (3) the proposal is not Rulemaking, DOE noted that 10 CFR DOE’s experience, the experience of ‘‘connected’’ to other actions with 1021.215(d) includes an outdated other agencies, completed potentially significant impacts and is reference to § 1021.312. In the DOE environmental reviews, professional not related to other actions with NEPA regulations promulgated in 1992, and expert opinion, and scientific cumulatively significant impacts, and § 1021.312 addressed environmental analyses. DOE also considers public the proposed action is not precluded as
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an impermissible interim action from public comments and from DOE’s DOE government research laboratory (at pursuant to 40 CFR 1506.1 and 10 CFR further consideration of its proposal. page 1); B5.13 (experimental wells for 1021.211. DOE does not repeat discussion of injection of small quantities of carbon To fit within a categorical exclusion topics in this final rule that have not dioxide) from Pacific Northwest listed in appendix B, a proposed action changed relative to what was described National Laboratory (at page 1); B5.14 also must satisfy certain conditions in the Notice of Proposed Rulemaking. (combined heat and power or known as ‘‘integral elements’’ (appendix Thus, the Notice of Proposed cogeneration systems) from Pacific B, paragraphs (1) through (5)). Briefly, Rulemaking may be consulted for Northwest National Laboratory (at page these conditions require that a further explanation regarding changes in 1); B5.15 (small-scale renewable energy categorical exclusion listed in appendix the final rule. research and development and pilot B not be applied to a proposed action DOE received no comments or only projects) from Biotechnology Industry with the potential to cause significant supportive comments on the following Organization (at page 3), Defenders of environmental impacts due to, for sections of the rule and is not making Wildlife (at page 2), and Pacific example, threatening a violation of any changes beyond those discussed in Northwest National Laboratory (at page applicable environmental, safety, and the Notice of Proposed Rulemaking: In 1); B5.16 (solar photovoltaic systems) health requirements; requiring siting subpart C, sections 1021.322 and from Pacific Northwest National and construction, or major expansion, of 1021.331; in subpart D, sections Laboratory (at page 1); B5.17 (solar a new waste storage, disposal, recovery, 1021.400; all of appendix A; in thermal systems) from Pacific Northwest or treatment facility; disturbing appendix B, paragraphs (1) through (2), National Laboratory (at page 1); B5.18 hazardous substances such that there and categorical exclusions B1.1, B1.2, (wind turbines) from Granite would be uncontrolled or unpermitted B1.4, B1.6 through B1.8, B1.10, B1.12, Construction Company (at page 2) and releases; having the potential to cause B1.13, B1.15 through B1.17, B1.20 Pacific Northwest National Laboratory significant impacts on environmentally through B1.23, B1.27, B1.28, B1.30 (at page 1); B5.19 (ground source heat sensitive resources; or involving through B1.32, B1.35, B1.36, B2.1, B2.2, pumps) from Pacific Northwest National genetically engineered organisms, B2.4 through B2.6, B3.2 through B3.5, Laboratory (at page 1); B5.20 (biomass unless the proposed activity would be B3.10, B3.13, B4.2, B4.3, B4.5, B4.8, power plants) from Pacific Northwest contained in a manner to prevent B5.1, B5.2, B5.6, B5.7, B5.9 through National Laboratory (at page 1); B5.21 unauthorized release into the B5.12, B5.14, B5.21 through B5.23, B6.2 (methane gas recovery and utilization environment and conducted in through B6.10, B7.1, B7.2; in appendix accordance with applicable C, C1 through C3, C5, C6, C9 through systems) from Pacific Northwest requirements. C11, C13, C14, C16; and in appendix D, National Laboratory (at page 1); B5.22 The level of detail necessary to D2 through D6, D8 through D12. In the (alternative fuel vehicle fueling stations) evaluate the potential for extraordinary final rule, therefore, these sections from Pacific Northwest National circumstances and otherwise to remain as discussed in the Notice of Laboratory (at page 1); B5.23 (electric determine whether a categorical Proposed Rulemaking and are not vehicle charging stations) from National exclusion is appropriate for a particular discussed further. In addition, this final Electrical Manufacturers Association (at proposed action varies. For example, rule does not further discuss editorial page 1), National Wildlife Federation (at appendix A to subpart D lists categorical changes described in the Notice of page 1), and Pacific Northwest National exclusions for several routine Proposed Rulemaking or in section II, Laboratory (at page 1); B5.24 (drop-in administrative actions, studies, and Statement of Purpose, above. hydroelectric systems) from Pacific planning activities. A NEPA Northwest National Laboratory (at page Compliance Officer normally can A. General Comments on Proposed 1); and B5.25 (small-scale renewable determine whether a categorical Amendments energy research and development and exclusion listed in appendix A is The U.S. Environmental Protection pilot projects in aquatic environments) appropriate by reviewing a description Agency stated that the ‘‘proposed from Biotechnology Industry of the proposed project. However, to changes will enhance the efficiency of Organization (at page 3), Ocean determine whether a categorical DOE’s environmental review process Renewable Power Company (at page 1), exclusion from appendix B applies, in while maintaining appropriate and Pacific Northwest National addition to the project description, a consideration of environmental effects Laboratory (at page 1). DOE received a NEPA Compliance Officer also would pursuant to NEPA’’ and, accordingly, comment from the Biotechnology consider information about a proposed did not object to the proposed Industry Organization (at pages 1 and 3) project site and the result of reviews by rulemaking. in support of the use of algal biomass for other agencies (such as of historic In addition, several comments renewable energy production, stating properties or threatened and endangered expressed support for the establishment that the existing regulatory framework species), as well as other related of particular new categorical exclusions, was sufficient to protect human health information. especially for renewable energy and the environment. The comment technologies. DOE received comments supported the use of categorical IV. Comments Received and DOE’s expressing support for the following exclusions for related small-scale and Responses categorical exclusions as proposed: B1.7 laboratory research and pilot projects. DOE has considered the comments on (electronic equipment) from Edison Finally, DOE received a comment from the proposed rulemaking received Electric Institute (at page 2); B3.9 the Blue Ridge Environmental Defense during the public comment period as (projects to reduce emissions and waste League (at page 1) indicating general well as all late comments. DOE has generation) from Edison Electric support for solar photovoltaic and solar incorporated some revisions suggested Institute (at page 2) and National thermal facilities and wind turbines, but in these comments into the final rule. Wildlife Federation (at page 1); B3.16 cautioned that the public may see The following discussion describes the (research activities in aquatic categorical exclusions as loopholes, comments received, provides DOE’s environments) from Biotechnology which could undermine support for response to the comments, and Industry Organization (at page 3) and these technologies. DOE notes these describes changes to the rule resulting Pacific Northwest National Laboratory, a comments. Section 1021.410 describes
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the process for applying a categorical natural and human environment’’ and § 1021.341, that ‘‘DOE shall integrate the exclusion. applauded DOE’s goals of removing NEPA process and coordinate NEPA Several comments expressed general barriers toward the adoption of compliance with other environmental objections to or concerns regarding innovative research on renewable review requirements to the fullest extent DOE’s proposed revision of its NEPA energy. possible.’’ DOE appreciates the concern regulations. A comment from an A comment from the Kaibab Band of expressed by the comment and will anonymous individual (at pages 1–2) Paiute Indians (at page 1), citing the continue to seek ways to improve rejected all proposed changes, and a April 2010 Gulf oil spill, expressed coordination of environmental review comment from the Blue Ridge opposition to the use of categorical requirements. Environmental Defense League (at page exclusion determinations for A comment from the Chesapeake Bay 1) opposed the addition of any experimental and research and Foundation (at page 2) supported the categorical exclusions. DOE notes these development projects because of their recommendation in the CEQ Categorical comments. A comment from Jean Public unpredictability, and recommended that Exclusion Guidance that an agency such (at page 1) listed wildlife, birds, reptiles, DOE analyze experimental or unproven as DOE develop a schedule for the and mammals as environmental techniques in environmental periodic review of its categorical resources to be protected and stated that assessments or environmental impact exclusions at least every 7 years. DOE environmental assessments should statements. The comment recommends also agrees with the recommendation for never be allowed or used. DOE responds a similar approach for proven periodic review and considers this that DOE’s NEPA regulations provide techniques employed in extreme rulemaking to satisfy the CEQ for the consideration of potential situations. In response to this and other recommendation for the near term. DOE impacts on environmentally sensitive comments related to research and intends to review its categorical resources, and the provisions relating to development activities, DOE reviewed exclusions periodically, consistent with environmental assessments are its categorical exclusions and revised CEQ guidance, to ensure that DOE’s consistent with NEPA and the some of the listed actions and associated categorical exclusions ‘‘remain current requirements of the CEQ NEPA limits, such as described for categorical and appropriate,’’ as stated in the CEQ regulations. A comment from Joyce exclusions below. Limits on the size, guidance. Dillard (at page 1) stated that public scope, and other aspects (such as health and safety should be a containment), combined with other C. Comments on Amendments to consideration first and foremost; DOE criteria, restrict the application of Subpart D notes that public health and safety are categorical exclusions for research and 1. Placement of Categorical Exclusions among the key considerations in all development activities to projects that in Appendix A vs. Appendix B NEPA reviews, including the normally would not have a potential for establishment and application of significant environmental impacts. For A comment from Pacific Northwest categorical exclusions. proposed projects involving proven National Laboratory (at page 3) asked DOE received a comment from the techniques in extreme situations, DOE DOE to evaluate moving several Chesapeake Bay Foundation (at page 2) would evaluate whether extraordinary categorical exclusions from appendix B, asking that DOE provide ‘‘a clear circumstances are present such that for which determinations are explanation and evidential support,’’ in application of a categorical exclusion is documented and made publicly accordance with the CEQ Categorical not appropriate. available, to appendix A, for which Exclusion Guidance, when proposing DOE received a comment from Brian determinations are not required to be categorical exclusions. DOE establishes Musser (at page 2) regarding the documented. For example, the comment categorical exclusions based on regulation of coal combustion residue stated that requiring documentation for Departmental experience, the under Resource Conservation and routine maintenance (categorical experience of other agencies, completed Recovery Act Subtitle C. DOE considers exclusion B1.3) that is performed many environmental reviews, professional this comment to be out of scope because times daily is an inefficient use of and expert opinion, and scientific it does not relate to the DOE NEPA resources and results in gaps in analyses. For example, some of DOE’s regulations. However, DOE would compliance. DOE decided not to move proposed categorical exclusions are consider potential impacts associated any categorical exclusion from appendix supported by existing comparable with coal combustion residue where B to appendix A because such a change categorical exclusions from other relevant to NEPA review of a specific would reduce transparency in the Federal agencies and their related proposal. Department’s NEPA compliance experience. DOE prepared a Technical program. To address the potential B. Comments on DOE’s NEPA Process Support Document to provide analysis inefficiency identified by the comment, and identify reference documents A comment from the Ocean DOE is adding a new paragraph (10 CFR supporting the revisions described in Renewable Power Company (at pages 1– 1021.410(f)) to the final rule that the Notice of Proposed Rulemaking. In 2), referring to a pilot project for which describes current practice to address preparation of this final rule, DOE DOE provides funding and another proposed recurring activities to be updated and expanded the Technical agency has licensing authority, stated undertaken during a specified time Support Document. The Technical that the NEPA process involves period, such as routine maintenance Support Document is available at duplicative and unnecessary reviews by activities for a year, in a single http://energy.gov/nepa/downloads/ multiple agencies, which increases costs categorical exclusion determination technical-support-document- for both the agencies and the applicant after considering the potential supplement-department-energys-notice- and imposes delays that can jeopardize aggregated impacts. final-rulemaking. private financing. This comment does Another comment from Sandy A comment from the Biotechnology not propose specific changes to DOE’s Beranich (at page 1) stated that many Industry Organization (at page 2) NEPA regulations, but suggests that categorical exclusions in appendix A are expressed support for science-based coordination with other environmental for routine activities, and NEPA should regulation that ‘‘focuses on reducing review requirements could be improved. not be required for routine activities. and eliminating actual risks to the DOE’s NEPA regulations state, in The comment stated that, if some level
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of scale is not provided to indicate to provide a useful limit and suggested, circumstance,’’ where application of a when an appendix A review is triggered, for example, including in the condition categorical exclusion would be then DOE should post such appendix A a requirement for the existence of inappropriate. Before applying a categorical exclusion determinations infrastructure; further clarification is categorical exclusion, a NEPA online to inform the public how DOE necessary, comments said. A comment Compliance Officer will evaluate the uses its resources. DOE responds that from Sandy Beranich (at page 3) pointed context of the proposed action to the application of categorical exclusions out that land disturbed or developed in determine whether it complies with the listed in appendix A normally is a the past could, if abandoned, have integral elements of the categorical simple matter that entails minimal cost. reverted to a natural state and, therefore, exclusion (listed in appendix B, DOE has not found use of these suggested that ‘‘previously disturbed or paragraphs (1) through (5)) and whether categorical exclusions to be problematic developed’’ should be bounded by a there are any associated extraordinary and has not identified any need to timeframe. Comments (e.g., from circumstances that would affect the establish a level of activity below which Defenders of Wildlife (at page 2) and significance of impacts. NEPA normally would not apply. Some National Wildlife Federation (at page 4)) 3. Small or Small-Scale DOE offices choose to post to the Web also suggested that DOE mention the their determinations for categorical many brownfield, Superfund, and Several comments (e.g., DOI (at page exclusions listed in appendix A, but abandoned mine locations that have 3), Ocean Renewable Energy Coalition DOE does not require this practice. been identified through the (at page 2)) asserted that DOE’s use of A comment from Sandy Beranich (at Environmental Protection Agency’s ‘‘small’’ and ‘‘small-scale’’ was too page 3) stated that NEPA ‘‘is all about Repowering America Program, in vague to adequately define the scope of ground-disturbing actions—not routine partnership with DOE. In response, DOE classes of actions and asked DOE to activities.’’ DOE disagrees that NEPA is clarifies that the phrase ‘‘previously more narrowly define or clarify its use limited to ground-disturbing activities disturbed or developed’’ refers to land of these terms. Comments (e.g., (for example, activities could also have that has been changed such that its Chesapeake Bay Foundation (at page 5), air or water impacts that would be functioning ecological processes have Defenders of Wildlife (at page 4), Sandy appropriate for NEPA review), and is been and remain altered by human Beranich (at page 2)) requested that DOE not making any change in response to activity. The phrase encompasses areas add a physical limitation such as this comment. that have been transformed from natural acreage or a megawatt limitation or Another comment from Sandy cover to non-native species or a number of turbines (in categorical Beranich (at page 3) provided an managed state, including, but not exclusion B5.18) to further define example of a proposed action, the limited to, utility and electric power ‘‘small’’ or ‘‘small-scale.’’ A comment components of which, in her opinion, transmission corridors and rights-of- from the Chesapeake Bay Foundation (at fell within six different appendix A and way, and other areas where active page 5) asked DOE to impose a 5-acre appendix B categorical exclusions. DOE utilities and currently used roads are or smaller limit for small-scale agrees that it is possible for a project to readily available. This clarification educational facilities in categorical be covered by more than one categorical applies to all uses of the phrase exclusion B3.14 and expressed concern exclusion. Furthermore, as stated in ‘‘previously disturbed or developed.’’ regarding the potential size (footprint) of DOE’s NEPA regulations (10 CFR This clarification has been added to a facility for nanoscale research in 1021.410(d)), a class of actions includes § 1021.410(g). categorical exclusion B3.15. A comment activities foreseeably necessary to In addition, DOE notes that two from the Chesapeake Bay Foundation (at proposals encompassed within the class definitions offered in a public comment page 3) noted that determining what is of actions (such as associated may help readers understand the a small size is influenced by the transportation activities and award of meaning of previously disturbed and location of a proposed action on the implementing grants and contracts). developed. A comment from the landscape. In response, DOE provides a Where an action might fit within Chesapeake Bay Foundation (at page 4) general discussion of ‘‘small’’ and multiple categorical exclusions, a NEPA suggested that ‘‘previously disturbed’’ ‘‘small-scale’’ below and also discusses Compliance Officer should use the should refer to land that has largely the use of these terms in the context of categorical exclusion(s) that best fits the been transformed from natural cover to specific classes of actions (B1.26, B1.29, proposed action. a managed state and that has remained B3.14, B3.15, B5.18, B5.25, B6.1, C8 (distinguishing small scale and large 2. Previously Disturbed or Developed in that managed state (rather than reverted back to largely natural cover). scale)) later in this preamble. Area The comment (at page 4) also suggested In determining whether a particular DOE received comments (e.g., from that ‘‘developed area’’ should refer to proposed action qualifies for a Chesapeake Bay Foundation (at page 4), land that is largely covered by man- categorical exclusion, DOE considers Defenders of Wildlife (at page 2), and made land uses and activities terms such as ‘‘small’’ and ‘‘small-scale’’ National Wildlife Federation (at pages 1, (residential, commercial, institutional, in the context of the particular proposal, 4–5)) on the use of the phrase industrial, and transportation). including its proposed location. In ‘‘previously disturbed or developed,’’ A few comments (e.g., from the assessing whether a proposed action is which appears in several categorical Chesapeake Bay Foundation (at page 4) small, in addition to the actual exclusions. In the Notice of Proposed and Defenders of Wildlife (at page 2)) magnitude of the proposal, DOE Rulemaking, DOE explained that the pointed out that the interpretation of the considers factors such as industry phrase referred to ‘‘land that has been phrase depends on the context, and that, norms, the relationship of the proposed changed such that the former state of the in some contexts, there is a potential for action to similar types of development area and its functioning ecological significant impacts when a particular in the vicinity of the proposed action, processes have been altered.’’ action is taken, even if it occurs in a and expected outputs of emissions or Comments (e.g., from Defenders of disturbed area. Although DOE agrees waste. When considering the physical Wildlife (at page 2), National Wildlife with this possibility, the potential for size of a proposed facility, for example, Federation (at page 5)) expressed such impacts would be unlikely and a DOE NEPA Compliance Officer would concern that the phrase was too vague would constitute an ‘‘extraordinary review the surrounding land uses, the
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scale of the proposed facility relative to the use of ‘‘adversely affect’’ was or possession of the United States (such existing development, and the capacity clearer. DOE’s support for its categorical as Puerto Rico, Guam, and American of existing roads and other exclusions is provided in this preamble Samoa), and the District of Columbia. infrastructure to support the proposed and in the Technical Support This definition is a clarification of, not action. This clarification has been added Document. For a description of how a change in, DOE practice because DOE to § 1021.410(g). DOE creates and applies its categorical always has applied, and continues to DOE has reviewed the proposed exclusions, please see Section III above. apply, this meaning to the word ‘‘state’’ categorical exclusions and classes of To understand why DOE is changing in 10 CFR part 1021. action on a case-by-case basis to further some conditions in categorical consider size or scale issues in response exclusions that previously used the 6. Comments on Section 1021.410 to comments received on the Notice of phrase ‘‘not adversely affect’’ or that Comments (e.g., from Tri-Valley Proposed Rulemaking. Among other required no change in a particular CAREs (at pages 2–4)) asked how DOE factors, DOE considered that these terms parameter, it is helpful to understand would meet the CEQ requirement that appear in its existing categorical that it was never DOE’s intent or an agency’s categorical exclusion exclusions and have been applied by practice that identification of any procedures ‘‘provide for extraordinary NEPA Compliance Officers for more adverse impact or change whatsoever— circumstances in which a normally than 15 years. As a result of this review, no matter how small—would disqualify [categorically] excluded action may DOE concludes that the terms ‘‘small’’ the use of a categorical exclusion for a have a significant environmental effect’’ and ‘‘small-scale’’ remain appropriate particular proposed project. Also, the (40 CFR 1508.4). DOE’s regulations for describing the types of activities changes are consistent with the purpose require that, before a categorical contemplated by categorical exclusions. of categorical exclusions, which is to exclusion may be applied to a proposed The provisions of the individual define a set of activities that normally action, a determination must be made categorical exclusions using these terms, pose no potential for significant that there are no extraordinary together with the integral elements at environmental impacts, and with the circumstances related to a proposal that appendix B, paragraphs (1) through (5), CEQ NEPA regulations and its may affect the significance of the the general restrictions on the Categorical Exclusion Guidance. proposal’s environmental effects (10 application of categorical exclusions at One change DOE is making, for CFR 1021.410(b)(2)). In the final rule, 10 CFR 1021.410, and extraordinary example, is in the integral elements DOE describes extraordinary circumstances, provide the necessary applicable to all categorical exclusions circumstances as ‘‘unique situations safeguards to ensure that categorical in appendix B. The existing regulation presented by specific proposals, exclusions are not applied to activities states that a proposed action ‘‘must not including, but not limited to, scientific that could result in significant adversely affect environmentally controversy about the environmental environmental impacts. Therefore, DOE sensitive resources.’’ DOE is changing effects of the proposal; uncertain effects is retaining its proposed use of ‘‘small’’ this to state that a proposed action must or effects involving unique or unknown and ‘‘small-scale’’ in its final rule. not ‘‘have the potential to cause risks; and unresolved conflicts significant impacts on environmentally concerning alternative uses of available 4. Would Not Have the Potential To sensitive resources.’’ This is consistent resources’’ (10 CFR 1021.410(b)(2)). If Cause Significant Impacts with the CEQ Categorical Exclusion DOE identifies an extraordinary DOE received comments (e.g., from Guidance, which states that an agency circumstance that would result in a Columbia Riverkeeper (at page 6), may define its extraordinary potentially significant impact, then it National Wildlife Federation (at page 3)) circumstances ‘‘so that a particular would not apply a categorical exclusion on its proposed use of the phrase situation, such as the presence of a to that proposed action. Further, under ‘‘would not have the potential for protected resource, is not considered an DOE’s NEPA regulations, before a significant impact’’ in both the integral extraordinary circumstance per se, but a categorical exclusion from appendix B element provision (at appendix B, factor to consider when determining if of subpart D may be applied, DOE must paragraph (4)) of appendix B categorical there are extraordinary circumstances, determine that the proposed action exclusions and a number of specific such as a significant impact to that satisfies all of the conditions known as categorical exclusions (categorical resource.’’ ‘‘integral elements’’ (appendix B, exclusions B1.11, B1.18, B1.24, B2.3, In the case of individual categorical paragraphs (1) through (5)). These and B5.18). In response to these exclusions, use of the term ‘‘significant’’ conditions ensure that a categorical comments, DOE reviewed each use of helps to highlight a type of potential exclusion is not applied to any the phrase in the Notice of Proposed impact that a NEPA Compliance Officer proposed action that would have the Rulemaking. After further consideration, must consider when reviewing a potential to cause significant DOE is revising related text in several particular proposed action. This is environmental impacts due to, for categorical exclusions. See discussion of consistent with the CEQ Categorical example, a threatened violation of categorical exclusions B1.5, B1.11, B3.1, Exclusion Guidance, which suggests applicable environmental, safety, and B3.8, and B4.6 below. DOE is that it may be useful for agencies to health requirements, or by disturbing continuing to use the phrase in other ‘‘identify additional extraordinary hazardous substances such that there categorical exclusions and related text. circumstances and consider the would be uncontrolled or unpermitted A comment from Tri-Valley CAREs (at appropriate documentation when using releases. Together, DOE’s extraordinary pages 2–3) expressed concern that DOE certain categorical exclusions.’’ circumstances and integral elements was expanding the categorical provisions require the Department to exclusions ‘‘without providing an 5. Definition of ‘‘State’’ consider whether there are conditions analysis of whether there was actually a DOE uses the phrase ‘‘Federal, state, surrounding a proposal that may affect potential for significant environmental or local government’’ (and similar the significance of the proposal’s impact.’’ A comment from Sandy phrases) in 10 CFR part 1021. Unless environmental effects. Beranich (at page 1) stated that use of otherwise specified, the term ‘‘state’’ Another comment (from Columbia ‘‘significant’’ would leave the degree of refers broadly to any of the states that Riverkeeper (at page 5)) expressed impact open to interpretation, whereas, comprise the United States, any territory concern that DOE’s extraordinary
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circumstances are not consistent with CEQ provisions, but did not recommend final rule, to be consistent with the CEQ guidance and asserted that DOE’s any particular change to DOE’s Advisory Council on Historic examples of extraordinary regulations. DOE considered each of the Preservation implementing regulations circumstances set a ‘‘higher bar’’ than cited issues in formulating its rule, and (36 CFR part 800) for the National CEQ’s examples. The comment the rule is consistent with the CEQ Historic Preservation Act, DOE has suggested that, to be consistent with Categorical Exclusion Guidance. added ‘‘Native Hawaiian organization’’ CEQ guidance, DOE’s extraordinary Further, DOE consulted with CEQ to the list of entities that may designate circumstances be based on the throughout the rulemaking process in such properties. The Advisory Council ‘‘presence of an endangered or accordance with 40 CFR 1507.3. on Historic Preservation regulations threatened species or a historic DOE is codifying at 10 CFR provide consultative roles to both resource.’’ DOE based its approach to 1021.410(e) its policy to document and Indian tribes and Native Hawaiian extraordinary circumstances on the post online appendix B categorical organizations in the Section 106 process definitions of categorical exclusion and exclusion determinations. As stated in under the National Historic Preservation significance in the CEQ regulations. See the Notice of Proposed Rulemaking, Act. The Advisory Council’s regulations 40 CFR 1508.4 and 1508.27. DOE finds such postings will not include define a Native Hawaiian organization its approach to be consistent with the information that DOE would not as ‘‘any organization which serves and CEQ Categorical Exclusion Guidance, disclose pursuant to the Freedom of represents the interests of Native which states (II.C), ‘‘An extraordinary Information Act (FOIA). A comment Hawaiians; has as a primary and stated circumstance requires the agency to from Tri-Valley CAREs (at page 2) purpose the provision of services to determine how to proceed with the expressed concern that the public Native Hawaiians; and has NEPA review. For example, the would be deprived of a right to demonstrated expertise in aspects of presence of a factor, such as a challenge such withholdings under historic preservation that are significant threatened or endangered species or a FOIA. Further, the comment asked DOE to Native Hawaiians’’; and the historic resource, could be an to explain the process by which the regulations define Native Hawaiian as extraordinary circumstance, which, public can challenge potentially ‘‘any individual who is a descendent of depending on the structure of the improper withholdings related to an the aboriginal people who, prior to agency’s NEPA implementing online posting of a categorical exclusion 1778, occupied and exercised procedures, could either cause the determination. DOE is committed to sovereignty in the area that now agency to prepare an EA or an EIS, or openness, as is evidenced by its constitutes the State of Hawaii’’ (36 CFR cause the agency to consider whether decision to post appendix B categorical 800.16(s)). the proposed action’s impacts on that exclusion determinations online. The Further, DOE clarifies that use of factor require additional analysis in an procedures for requesting information ‘‘Federally recognized Indian tribe’’ in EA or an EIS. In other situations, the related to a categorical exclusion subpart D, appendix B of 10 CFR part extraordinary circumstance could be determination are the same as for any 1021, is intended to include Indian and defined to include both the presence of other DOE document. If applicable, DOE Alaska Native tribes that the Secretary the factor and the impact on that factor. will apply FOIA exemptions to a of the Interior recognizes as eligible for Either way, agency NEPA implementing categorical exclusion determination—as programs and services provided by the procedures should clearly describe the it would with any document—to United States to Indians because of their status as Indians. (25 U.S.C. 479a–1). manner in which an agency applies appropriately limit the release of Each year, the Bureau of Indian Affairs extraordinary circumstances and the particular types of information (e.g., (BIA) publishes a list in the Federal circumstances under which additional classified or confidential business Register of the recognized tribal entities. analysis in an EA or an EIS is information). To the fullest extent For purposes of appendix B to subpart warranted’’ (75 FR at 75633). Under possible, DOE will segregate D of 10 CFR part 1021, Federally DOE’s categorical exclusion process, information that is exempt from release recognized Indian tribes are those therefore, it is an action’s potential for under FOIA to allow public review of entities included on the BIA list. (A link significant impacts, for example, on a the remainder of the document. See 10 to the list and a supplement, current at sensitive resource, and not simply the CFR 1021.340. For further information the time of this final rule’s publication, on FOIA processes at DOE, see DOE’s presence of a sensitive resource, that is can be found on the BIA Web site at FOIA resources posted at http:// the basis for determining the need for an http://www.bia.gov/DocumentLibrary/ energy.gov/management/office- environmental assessment or index.htm.) DOE would refer to the most management/operational-management/ environmental impact statement. It is current BIA list when considering the the responsibility of the DOE NEPA freedom-information-act, including a integral element. Compliance Officer to consider this handbook on procedures for filing a potential for significant impacts and to request at http://energy.gov/sites/prod/ Environmentally Sensitive Resources consult with other agencies as necessary files/maprod/documents/Handbook.pdf. DOE received comments (e.g., from when considering a proposed action. The addition of paragraphs (f) and (g) the Chesapeake Bay Foundation (at page This is expressly addressed in an to 10 CFR 1021.410 is discussed in 3), the Ocean Renewable Energy integral element at appendix B, section IV.C.1–3, above. Coalition (at page 5), and Pacific paragraph (4). 7. Integral Elements Northwest National Laboratory (at page DOE received a comment from 1)) suggesting further modifications or Columbia Riverkeeper (at page 4) Federally Recognized Indian Tribe clarifications to the list of referring to CEQ’s guidance that In its Notice of Proposed Rulemaking, environmentally sensitive resources that agencies: Consider cumulative effects; DOE proposed adding ‘‘Federally are part of the integral elements define physical, temporal, and recognized Indian tribe’’ to its list of applicable to appendix B categorical environmental factors that would entities that designate property as exclusions (appendix B, paragraph (4)). constrain the use of a categorical historically, archeologically, or DOE does not intend the examples in exclusion; and consider extraordinary architecturally significant in appendix B(4) to be an exhaustive list of circumstances. The comment cited the B, paragraph (4)(i). In addition, in the environmentally sensitive resources, but
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agrees that additional examples would significant impacts’’ in section IV.C.4 of decisionmaking, DOE considers the be helpful. DOE is adding the Bald and this preamble. nature of decisions to be made and the relationships among proposed actions Golden Eagle Protection Act and the Genetically Engineered Organisms, and potential environmental impacts, Migratory Bird Treaty Act to B(4)(ii). In Synthetic Biology, Governmentally among other factors. DOE has addition, DOE is correcting a Designated Noxious Weeds, and determined that, at this time, its typographical error in the reference to Invasive Species the Marine Mammal Protection Act in activities related to synthetic biology do B(4)(ii). Another comment (from the DOE received several comments (in not constitute a programmatic research Chesapeake Bay Foundation (at page 4)) reference to categorical exclusions B3.6, program and do not require an B3.8, B3.12, B3.15, B5.15, B5.20, and asked DOE to expand its listing of environmental impact statement. B5.25; e.g., from Center for Food Safety environmentally sensitive resources to DOE received several comments on behalf of itself and 3 other ‘‘recognize and protect * * * resources regarding research into bioenergy organizations (at pages 3–5) and of high local, state, or federal value and technologies, either performed or National Wildlife Federation (at page 2)) funded by DOE. Some of the comments concern that may not enjoy, or may not regarding the use of genetically (e.g., from the Biotechnology Industry yet have received, specific regulatory or engineered organisms, noxious weeds, Organization (at page 3)) were statutory protection.’’ Specifically, the and invasive non-native species, such as supportive of this research and comment (at page 3) asserted that DOE’s non-native algae. These comments encouraged the use of categorical clarification of environmentally suggested that the development and use exclusions to remove barriers to the sensitive resources was too limited of such organisms could affect entire adoption of these technologies. Some because it would not include ‘‘riparian ecosystems. The comments expressed comments (e.g., from Center for Food stream buffers * * * large forest or concern that these organisms could not Safety on behalf of itself and 3 other contiguous woodland assemblages, be contained and could escape into the organizations (at page 5), National locally specified high value farmland environment and potentially cause a Wildlife Federation (at pages 2 and 4)) * * * ‘candidate’ state or federal variety of environmental and human expressed concern about bioenergy threatened or endangered species or health impacts. research and the harvest of biomass their habitat * * * drinking water DOE received similar comments (e.g., involving invasive and non-native supply streams or reservoirs * * * or from Center for Food Safety on behalf of species, including non-native and * * * headwater streams.’’ In response itself and 3 other organizations (at pages genetically engineered algal species, to the comment, DOE is adding ‘‘state- 2 and 3)) regarding ‘‘synthetic biology,’’ specifically citing categorical exclusions proposed endangered or threatened suggesting that the impacts of B3.6, B3.8, and B5.25. The comments species or their habitat’’ to the developing and releasing genetically suggested that intentional or inadvertent description of environmentally sensitive engineered organisms, using man-made release of invasive or non-native resources listed in integral element DNA sequences, were largely unknown species, especially in aquatic B(4)(ii), which already explicitly and that such organisms could interact environments, could have unanticipated provides for consideration of with native species and adversely affect consequences, including threats to local ‘‘Federally-proposed or candidate the environment and entire ecosystems. ecosystems, and the National Wildlife species or their habitat.’’ DOE is not In addition, a comment from Center Federation (at page 2) suggested that adding the other resources described in for Food Safety on behalf of itself and categorical exclusions were appropriate the comment because they are not 3 other organizations (at page 2) asserted only for plant species that ‘‘successfully generally resources that have been that DOE has provided more than $700 pass[ed] an established weed risk identified as needing protection through million in funding for synthetic biology assessment.’’ Another comment (from Executive Order, statute, or regulation research since 2006 and that this level the Biotechnology Industry by Federal, state, or local government, of funding amounts to a programmatic Organization (at page 2)) requested that or a Federally recognized Indian tribe. research program that should be any regulations regarding biotechnology However, DOE acknowledges that the analyzed in an environmental impact reflect the principles laid out in the statement. The comment also asserted resource examples contained in the Coordinated Framework for the that DOE is attempting to segment the comment may be considered as Regulation of Biotechnology (51 FR potential environmental impacts of this extraordinary circumstances in making 23302; June 26, 1986) and articulated by research by seeking categorical an individual categorical exclusion the White House Emerging Technologies ‘‘exemptions’’ from NEPA for individual determination. Interagency Policy Coordination research projects. As an initial matter, Committee. Similarly, another comment (from DOE disagrees with the comment’s To address these comments, DOE Joyce Dillard (at page 1)) expressed funding estimate. For example, almost considered the addition of further general concern regarding destruction of all the funding is attributed to the restrictions to individual categorical wetlands and aquifers and salt water Genomics Science Program and the Joint exclusions, but opted instead to add a intrusion. DOE’s existing integral Genomics Institute, both of which are new integral element that will be elements B(4)(iii) and (vi) provide for ongoing initiatives (begun in the 1980s applicable to all appendix B categorical consideration of wetlands as well as and 1990s, respectively) that support exclusions. This integral element special sources of water (including sole research in several areas, only some of requires that, to fit the classes of actions source aquifers) as environmentally which can be referred to as synthetic in appendix B, a proposal must be one sensitive resources. With respect to salt biology. Moreover, DOE disagrees with that would not ‘‘[i]nvolve genetically water intrusion, DOE would consider the assertion that an amount of funding engineered organisms, synthetic the potential for salt water intrusion, is sufficient to define a programmatic biology, governmentally designated including whether it constitutes an research program for which DOE should noxious weeds, or invasive species, extraordinary circumstance, before prepare an environmental impact unless the proposed activity would be making a categorical exclusion statement. In determining whether an contained or confined in a manner determination. Also, see discussion of environmental impact statement is designed and operated to prevent ‘‘would not have the potential to cause required or would be beneficial to its unauthorized release [that is, a release
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not subject to an experimental use believes that, in general, it is reasonable vocabulary. DOE received a general permit issued by the Environmental to consider compliance with applicable comment from Edison Electric Institute Protection Agency (EPA), a permit or regulations as a factor in determining (at page 2) requesting that it further notification issued by the Department of whether a proposed action would have revise the proposed phrase to include Agriculture (USDA), or a granting of the potential to cause significant distribution lines and related facilities nonregulated status by the USDA] into environmental impacts. In the case of to ensure that the relevant categorical the environment and conducted in genetically engineered plants regulated exclusions are not limited to just accordance with applicable by USDA, its regulations require the transmission lines, but apply to energy requirements, such as those of the agency to perform independent NEPA delivery facilities more generally. Upon Department of Agriculture, the analysis before the plants may be grown further consideration, DOE is using the Environmental Protection Agency, and outdoors (7 CFR part 372). When grown term ‘‘powerlines’’ to be inclusive of the National Institutes of Health.’’ for research purposes, USDA regulations Examples of applicable guidelines and further require that field trials of both transmission and distribution lines requirements include National Institutes genetically engineered plants are (see categorical exclusions B1.3(m), of Health ‘‘Guidelines for Research conducted with sufficient confinement B1.9, B4.7, B4.10, B4.12, B4.13, and Involving Recombinant DNA methods in place such that the plants class of actions C4). Molecules’’ (http://oba.od.nih.gov/rdna/ will not persist in the environment or 9. Appendix B—Categorical Exclusions nih_guidelines_oba.html); USDA pose the risk for significant ‘‘Noxious Weed Regulations’’ (7 CFR environmental impacts (7 CFR part 340). Categorical Exclusions Applicable to part 360) and regulations for the DOE is generally limiting categorical Facility Operations (B1) ‘‘Introduction of Organisms and exclusions involving the activities B1.3 Routine Maintenance Products Altered or Produced Through mentioned in the comments to small- Genetic Engineering Which Are Plant scale, as opposed to commercial-scale, DOE received comments (e.g., from Pests or Which There Is Reason to actions. In DOE’s experience, small- Pacific Northwest National Laboratory Believe Are Plant Pests’’ (7 CFR part scale research and development (at page 3)) suggesting that categorical 340); and EPA Reporting Requirements activities normally do not have the exclusion B1.3 covers minor types of and Review Processes for potential to cause significant activities that are of a sufficiently small Microorganisms (40 CFR part 725, environmental impacts (see section scale not to warrant the documentation IV.C.3). particularly 40 CFR 725.200–470). required of an appendix B categorical A few comments (e.g., Center for Food These regulations impose appropriate exclusion and, therefore, such actions containment and confinement measures Safety on behalf of itself and 3 other should be listed in appendix A. DOE is to address the risk of inadvertent release organizations (at page 4)) suggested that committed to increasing the of experimental organisms. In order to genetically engineered crops grown for qualify for a categorical exclusion, a biofuels production might cause transparency of its NEPA implementing proposed action would have to prevent environmental impacts different from regulations and practices, and DOE unauthorized releases into the genetically engineered plants grown for decided not to move this categorical environment, comply with all other purposes, but the comments did exclusion from appendix B, for which a applicable requirements, and meet other not indicate what those differential public document is prepared and posted conditions of the applicable categorical impacts would be. DOE foresees no on DOE’s NEPA Web site (http:// exclusion. difference in environmental impacts energy.gov/nepa/doe-nepa-documents/ This new integral element obviates from a small research plot of genetically categorical-exclusion-determinations), the need for the last sentence in engineered plants grown for the purpose to appendix A, for which no categorical exclusion B3.8, as proposed, of food or fiber as compared to the documentation is required. Further, the and that sentence is removed in the impacts from the same plants grown for actions under categorical exclusion B1.3 final rule. This integral element limits biomass. include physical activities in contrast to the activities that can receive a Another comment from the National the more administrative functions categorical exclusion determination to Wildlife Federation (at page 2) and the covered by categorical exclusions in those that will not be released into the Center for Food Safety (on behalf of appendix A. Thus, DOE is not making itself and 3 other organizations; at page environment without proper any changes based on these comments. authorization and will be conducted in 4) suggested that, once DOE provided accordance with applicable funding to a researcher to perform work DOE also received a comment from requirements, which include with non-genetically engineered Sandy Beranich (at page 1) regarding containment, confinement, or other organisms under a categorical exclusion, item (k) in categorical exclusion B1.3. requirements for working with these the researcher could switch to the use The comment suggested DOE insert organisms. The new integral element of a genetically engineered organism additional examples of erosion control takes into account both the principles without incurring further NEPA review. and soil stabilization measures, laid out in the Coordinated Framework Under the terms of DOE funding specifically ‘‘gabions’’ and ‘‘grading.’’ for the Regulation of Biotechnology and agreements, the scope of work is The examples already provided in the by the White House Emerging disclosed by the researcher, and proposed B1.3(k), reseeding and Technologies Interagency Policy fundamental changes such as those revegetation, were not meant to serve as Coordination Committee. suggested in the comment would an exhaustive list, and other measures A comment relating to categorical require further NEPA analysis. could qualify for categorical exclusion exclusion B3.8 (from the National under B1.3(k). Nonetheless, DOE is Wildlife Federation (at page 2) and also 8. Powerlines adding the two examples suggested in from Center for Food Safety on behalf of In the Notice of Proposed Rulemaking the comment because they will help itself and 3 other organizations (at page DOE proposed to change ‘‘electric 4)) stated that USDA approval of a powerlines’’ to ‘‘electric transmission illustrate the types of erosion control genetically engineered crop does not lines’’ in several categorical exclusions and soil stabilization measures that are guarantee environmental safety. DOE to update technology-specific encompassed by B1.3(k).
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B1.5 Existing Steam Plants and to the list of activities included in this environment.’’ A comment from Cooling Water Systems class of actions in order to encompass Columbia Riverkeeper (at page 5) stated In its Notice of Proposed Rulemaking, the complete life cycle of the towers that this categorical exclusion is not DOE proposed modifying the second addressed by the categorical exclusion. warranted. DOE is not changing the condition of this categorical exclusion After further consideration, DOE scope of the categorical exclusion but is from would not ‘‘adversely affect water acknowledges that abandonment could merely re-wording the categorical withdrawals or the temperature of be misconstrued so as to absolve DOE of exclusion to incorporate the definition discharged water’’ to would not ‘‘have all responsibility for a tower, including of ‘‘uncontaminated’’ in a different way. the potential to cause significant for maintenance. This was not DOE’s Thus, DOE is making no change to the impacts on water withdrawals or the intent. Thus, DOE is removing categorical exclusion in response to this temperature of discharged water.’’ After ‘‘abandonment’’ from the list of comment. A separate comment stated further consideration, DOE is revising activities in this categorical exclusion that a categorical exclusion for the the language in this categorical (but is keeping ‘‘modification’’ and transfer, lease, or disposition of exclusion to further specify the ‘‘removal’’). For towers that are no contaminated property is not warranted. conditions. DOE is changing these longer used, DOE’s normal practice DOE agrees, and, as described above, the provisions to: ‘‘Improvements would would be to remove the tower or categorical exclusion is limited to not: * * * (2) have the potential to transfer responsibility to another party. property for which there would be no significantly alter water withdrawal As noted elsewhere in this preamble, potential for release of substances at a rates; (3) exceed the permitted DOE received public comments related level, or in a form, that would pose a temperature of discharged water to potential impacts on bird populations threat to public health or the * * *.’’ that could be associated with the use of environment. Therefore, DOE is not categorical exclusions. Though none of making a change to the categorical B1.11 Fencing the public comments was specific to exclusion based on this comment. After further consideration, DOE is categorical exclusion B1.19, DOE A comment from Columbia modifying this categorical exclusion to nonetheless considered the comments Riverkeeper (at page 6) stated that DOE’s better focus on the types of impacts to in the context of the activities addressed approach does not account for the wildlife that might be caused by in this categorical exclusion and environmental impacts of future fencing. DOE is replacing ‘‘would not reviewed current information related to operations after the transfer. DOE have the potential to cause significant the potential impacts of relevant towers responds that the second limitation impacts on wildlife populations or on bird populations. DOE concluded proposed for the categorical exclusion migration * * *’’ with ‘‘would not have that its existing provisions, including states that ‘‘under reasonably the potential to significantly impede for determining whether a proposal foreseeable uses * * * the covered wildlife population movement meets the integral elements of the actions would not have the potential to (including migration) * * *.’’ Also, see categorical exclusion (particularly cause a significant change in impacts discussion of ‘‘would not have the appendix B, paragraph (4)) and whether from before the transfer * * *’’ This potential to cause significant impacts’’ there are any associated extraordinary limitation would require the NEPA in section IV.C.4 of this preamble. circumstances that would affect the Compliance Officer to consider the significance of impacts, ensure significance of potential environmental B1.14 Refueling of Nuclear Reactors appropriate consideration of proposed impacts of reasonably foreseeable future DOE received a comment from Sandy tower design (height, use of guy wires, uses (including during operations, as Beranich (at page 2) asking which lighting) and location. Therefore, DOE is indicated by the comment) of the section of the DOE NEPA regulations not further revising categorical transferred property. addresses the disposition of spent exclusion B1.19. Several comments (e.g., from nuclear fuel. Management and In addition, a comment from Edison Columbia Riverkeeper (at page 6) and disposition of spent nuclear fuel would Electric Institute (at page 2) asked DOE Natural Resources Defense Council/ typically be the subject of the NEPA to add individual electric transmission Committee to Bridge the Gap (at page 1)) review for the facility (e.g., an towers and distribution poles to the questioned how DOE can assess environmental impact statement is scope of this categorical exclusion. whether an action is appropriately required under class of action D4, for Because electric transmission towers covered by this categorical exclusion ‘‘siting, construction, operation, and and distribution poles are already without preparing an environmental decommissioning of power reactors, included in the scope of DOE’s existing assessment or environmental impact nuclear material production reactors, B4 categorical exclusions, DOE is not statement. The process DOE uses for and test and research reactors’’). The making any changes to categorical making a categorical exclusion comment does not propose a change to exclusion B1.19 in response to this determination is described in this notice this categorical exclusion, and DOE is comment. under section III, Overview of Categorical Exclusions, above. retaining the proposed language in the B1.24 Property Transfers final categorical exclusion. A comment from Columbia A comment from Natural Resources Riverkeeper (at page 6) stated that there B1.18 Water Supply Wells Defense Council and Committee to would be no pathway for public For DOE’s response to comments on Bridge the Gap (at page 2) expressed involvement or comment on DOE’s this categorical exclusion, see concern that the reference to review under categorical exclusion discussion of ‘‘would not have the contamination was being removed from B1.24. DOE is increasing public potential to cause significant impacts’’ the categorical exclusion. DOE’s existing involvement and comment in section IV.C.4 of this preamble. categorical exclusion is limited to opportunities with regard to categorical property that is uncontaminated, which exclusion A7, transfers of personal B1.19 Microwave, Meteorological, and is defined to mean that there ‘‘would be property, by combining it into Radio Towers no potential for release of substances at categorical exclusion B1.24. The result In its Notice of Proposed Rulemaking, a level, or in a form, that would pose a is that the scope of B1.24 includes both DOE proposed adding ‘‘abandonment’’ threat to public health or the personal and real property, and since it
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is an appendix B categorical exclusion, there are any associated extraordinary Categorical Exclusions Applicable to it is subject to the online posting circumstances that would affect the Safety and Health requirement of 10 CFR 1021.410(e). significance of impacts. In accordance B2.3 Personal Safety and Health Under this new rule, DOE is codifying with integral element B(1) of the DOE Equipment its policy to document and post online NEPA regulations, DOE would ensure appendix B categorical exclusion that water treatment facilities under this For DOE’s response to comments on determinations at 10 CFR 1021.410(e), categorical exclusion would not this categorical exclusion, see consistent with the policy established threaten a violation of applicable discussion of ‘‘would not have the by the Deputy Secretary of Energy’s statutory, regulatory, or permit potential to cause significant impacts’’ Memorandum to Departmental requirements. For example, a in section IV.C.4 of this preamble. Elements on NEPA Process wastewater treatment facility would Categorical Exclusions Applicable to Transparency and Openness, October 2, comply with the National Pollutant Site Characterization, Monitoring and 2009. This process provides an Discharge Elimination System permit General Research (B3) opportunity for public review of the issued by the cognizant regulatory categorical exclusion determination. In authority, which would ensure that B3.1 Site Characterization and addition, see discussion of ‘‘would not pollutant loads are consistent with Environmental Monitoring have the potential to cause significant applicable water quality standards. For After further consideration, DOE is impacts’’ in section IV.C.4 of this these reasons, DOE is retaining the clarifying the means by which to preamble. proposed language in the final address potential impacts from ground categorical exclusion. B1.25 Real Property Transfers for disturbance. DOE is replacing the Cultural Protection, Habitat B1.29 Disposal Facilities for second sentence of the categorical Preservation, and Wildlife Management Construction and Demolition Waste exclusion (as proposed in the Notice of A comment from Edison Electric Proposed Rulemaking) with the A comment from the Chesapeake Bay Institute (at page 2) encouraged DOE to following: ‘‘Such activities would be Foundation (at page 5) recommended stipulate in the categorical exclusion designed in conformance with that the existing limitation of less than that any permit holders and owners of applicable requirements and use best approximately 10 acres be reduced to facilities on land involved in the management practices to limit the less than approximately 5 acres; the transfers must be given advance notice potential effects of any resultant ground comment did not provide the basis or so they can protect their rights. This disturbance.’’ any support for this recommendation. comment raises concerns unrelated to DOE is retaining the existing limitation A comment from Sandy Beranich (at environmental review under NEPA, of less than 10 acres. The comment also page 2) requested clarification of the which is the scope of this regulation. size of certain projects covered by this For this reason, DOE is retaining the referred to consideration of context and intensity, including the location, categorical exclusion, saying that the proposed language in the final difference between small and large-scale categorical exclusion. Separately, DOE landscape setting, and other resources present, in determining whether a given projects is subject to interpretation. is adding the word ‘‘Real’’ to the title of DOE’s discussion of ‘‘small’’ and this categorical exclusion to clarify that project is ‘‘small.’’ DOE agrees. For further information, see discussion of ‘‘small-scale’’ appears in section IV.C.3 the scope of the categorical exclusion of this preamble. does not include personal property. ‘‘small’’ and ‘‘small-scale’’ in section IV.C.3 of this preamble. Under DOE’s In its Notice of Proposed Rulemaking, B1.26 Small Water Treatment NEPA regulations, a NEPA Compliance DOE included ‘‘abandonment’’ in the Facilities Officer would evaluate the list of potential activities included in Although DOE did not propose to considerations cited in determining this categorical exclusion and in substantively change this categorical whether a proposal meets the integral categorical exclusion B1.19 in order to exclusion, a comment from the elements of the categorical exclusion encompass the complete life cycle of the Chesapeake Bay Foundation (at page 4) (listed in appendix B, paragraphs (1) characterization and monitoring devices disagreed with the existing categorical through (5)) and whether there are any in B3.1 and the towers in B1.19. As exclusion’s characterization that a associated extraordinary circumstances described with respect to B1.19, after ‘‘small’’ surface water or wastewater that would affect the significance of further consideration, DOE treatment facility is one with ‘‘a total impacts. For these reasons, DOE is acknowledges that abandonment could capacity less than approximately retaining the proposed language in the be misconstrued so as to absolve DOE of 250,000 gallons per day,’’ and stated final categorical exclusion. all responsibility for such devices or facilities, including for maintenance. that an environmental assessment might B1.33 Stormwater Runoff Control be appropriate if the context of a facility This was not DOE’s intention. so warrants. DOE’s experience over DOE received a comment from Joyce Therefore, DOE is removing many years is that a water or wastewater Dillard (at page 1) stating that ‘‘abandonment’’ (and adding ‘‘removal treatment facility processing 250,000 stormwater control is another potential or otherwise proper closure (such as of gallons or less per day is of a size that money maker for local policymakers a well)’’) in the text describing the life normally would not have the potential and the danger is high. DOE notes this cycle of characterization and monitoring for significant impacts. For further comment and is not making any changes devices and facilities addressed by the information, see discussion of ‘‘small’’ to this categorical exclusion in response. categorical exclusion. and ‘‘small-scale’’ in section IV.C.3 of B1.34 Lead-Based Paint Containment, To simplify the categorical exclusion, this preamble. A NEPA Compliance Removal, and Disposal DOE is changing ‘‘salt water and Officer would consider location and freshwater’’ to ‘‘aquatic environments.’’ context in determining whether a DOE is adding ‘‘containment, Aquatic, as used herein, may refer to proposal meets the integral elements of removal, and disposal’’ to the title of salt water, freshwater, or areas with the categorical exclusion (listed in this categorical exclusion for shifting delineation between the two; appendix B, paragraph (4)) and whether clarification. this is not a substantive change.
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B3.6 Small-Scale Research and associated with injection wells. synthetic biology, noxious weeds, and Development, Laboratory Operations, Categorical exclusion B3.7 requires that non-native species, such as non-native and Pilot Projects the well be sited within an existing, algae in projects that may be Categorical exclusion B3.6 does not characterized well field and requires categorically excluded under this include demonstration actions, as stated that the site characterization has section of the rule. For further in the Notice of Proposed Rulemaking. verified a low potential for seismicity. information, see discussion of However, after reviewing public DOE has experience in the construction ‘‘Genetically engineered organisms, comments and further internal and operation of exploratory and synthetic biology, governmentally experimental wells and, in DOE’s designated noxious weeds, or invasive consideration, DOE is revising the text experience, these conditions are species’’ in section IV.C.7 of this to state this condition more clearly. appropriate. Therefore, DOE is retaining preamble. DOE is deleting the last Separately, a comment (e.g., from the proposed language in the final sentence of the categorical exclusion (as Friends of the Earth and from Center for categorical exclusion. (The issue is also proposed in the Notice of Proposed Food Safety on behalf of itself and 3 relevant to categorical exclusions B5.3, Rulemaking), because the use of other organizations (at page 1)) stated B5.12, and B5.13.) genetically engineered organisms is now that this categorical exclusion should be DOE intended this categorical addressed by the new integral element. rejected, because its use could cause exclusion to include both extraction and significant impacts; DOE has injection wells. After further B3.9 Projects To Reduce Emissions determined that this categorical consideration, DOE is adding ‘‘for either and Waste exclusion, by its terms and in light of extraction or injection use’’ to clarify the DOE received a comment from Edison the integral element and extraordinary scope of new terrestrial infill Electric Institute (at page 2) expressing circumstances requirements, is exploratory and experimental well concern that the list of fuels provided in appropriate and would not have the activities under this categorical this categorical exclusion did not potential for significant impacts. exclusion. encompass all fuels with the potential to DOE received comments regarding the reduce emissions and waste. It was use of genetically engineered organisms, B3.8 Outdoor Terrestrial Ecological DOE’s intention that the list be synthetic biology, noxious weeds, and and Environmental Research illustrative, rather than exhaustive, so non-native species, such as non-native After further consideration, DOE is DOE is replacing the second and third algae in projects that may be clarifying the means by which to sentences of the categorical exclusion categorically excluded under this address potential impacts from ground with the following sentence: ‘‘For this section of the rule. For further disturbance. DOE is deleting the category of actions, ‘fuel’ includes, but information, see discussion of following words from the end of the first is not limited to, coal, oil, natural gas, ‘‘Genetically engineered organisms, sentence of the categorical exclusion: hydrogen, syngas, and biomass; but synthetic biology, governmentally ‘‘provided that such activities would not ‘fuel’ does not include nuclear fuel.’’ designated noxious weeds, or invasive have the potential to cause significant species’’ in section IV.C.7 of this impacts on the ecosystem’’ (as proposed B3.11 Outdoor Tests and Experiments preamble. in the Notice of Proposed Rulemaking). on Materials and Equipment DOE received a comment from Center The following new second sentence is Components for Food Safety on behalf of itself and being inserted: ‘‘Such activities would DOE received a comment from Tri- 3 other organizations (at page 3) that the be designed in conformance with Valley CAREs (at page 4) regarding the difference between a pilot study and a applicable requirements and use best use of encapsulated source, special demonstration action, which could management practices to limit the nuclear, or byproduct materials for require an environmental assessment or potential effects of any resultant ground nondestructive tests and experiments. environmental impact statement, is disturbance.’’ The comment expressed concern that unclear and suggested that this DOE is deleting the following the encapsulation could be accidentally categorical exclusion could be applied sentence to avoid confusion: ‘‘These destroyed, releasing the contents into to large-scale, open-pond projects actions include, but are not limited to, the environment. The comment also involving genetically engineered algae small test plots for energy related noted that the categorical exclusion did or algae altered through synthetic biomass or biofuels research.’’ Although not limit the amount of encapsulated biology without review of this categorical exclusion is appropriate materials that could be used. DOE environmental risks. DOE disagrees. for small biomass or biofuels research, responds that capsules for source, This categorical exclusion applies only it is only one example of a variety of special nuclear, and byproduct material to small-scale projects, such as those research projects that could be included are designed using technologies and performed for proof of concept in the class of actions described by materials to enable their safe transport purposes. For further information, see categorical exclusion B3.8. Another and use. These capsules are tested to discussion of ‘‘small’’ and ‘‘small-scale’’ comment (from Friends of the Earth and withstand extremes of temperature and in section IV.C.3 of this preamble. from Center for Food Safety on behalf of pressure and to resist severe impacts, Further, before a categorical exclusion itself and 3 other organizations (at page puncture, and vibration without determination can be made, the 1)) stated that this categorical exclusion allowing their contents to escape. Such proposed action undergoes review, for should be rejected because its use could encapsulation can readily withstand the example, to determine whether it is cause significant impacts; DOE has types of handling that would occur consistent with the integral elements determined that this categorical during the nondestructive tests and and the conditions of the particular exclusion, by its terms and in light of experiments covered by the categorical categorical exclusion. the integral element and extraordinary exclusion. Performance requirements for circumstances requirements, is such testing are based on factors such as B3.7 New Terrestrial Infill Exploratory appropriate and would not have the the type and amount of radioactive and Experimental Wells potential for significant impacts. material involved and intended use of DOE received a comment from Joyce DOE received comments regarding the the source. Therefore, there is minimal Dillard (at page 1) regarding the risks use of genetically engineered organisms, risk that encapsulated materials will be
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inadvertently released into the section of the rule. For further in light of the integral element and environment. Because encapsulation information, see discussion of extraordinary circumstances addresses the risk of environmental ‘‘Genetically engineered organisms, requirements, is appropriate and would release, DOE is not including a limit on synthetic biology, governmentally not have the potential for significant the amount of encapsulated source, designated noxious weeds, or invasive impacts. Additionally, DOE received special nuclear, or byproduct material species’’ in section IV.C.7 of this comments (e.g., from Friends of the that could be used in the nondestructive preamble. Earth (in attachment titled tests and experiments covered by the In addition, DOE is updating the Nanotechnology, Climate and Energy), categorical exclusion. Any such limit reference to the manual on Biosafety in and Center for Food Safety on behalf of would be part of the design of a Microbiological and Biomedical itself and 3 other organizations (at page nondestructive test or experiment, Laboratories to the most current version. 4)) expressing a wide range of which would include appropriate B3.14 Small-Scale Educational environmental and human health protocols to protect participants and the Facilities concerns regarding a potential release of environment. DOE is retaining the nanoscale materials into the proposed language and adding a A comment from the Chesapeake Bay environment or commercial-scale use of reference to applicable standards to the Foundation (at page 5) stated that a nanoscale materials. DOE reiterates that categorical exclusion in the final rule. specific small size limitation should be this categorical exclusion may be used added for the facilities under the only for facilities for indoor small-scale B3.12 Microbiological and Biomedical proposed categorical exclusion or the research activities and not involving the Facilities categorical exclusion should be environmental release, or commercial- Comments (e.g., from Friends of the eliminated from the rulemaking. The scale production, of nanoscale Earth and Center for Food Safety on comment suggested that DOE consider materials. For further information, see behalf of itself and 3 other organizations including a limit of 5 acres or smaller, discussion of ‘‘small’’ and ‘‘small-scale’’ (at page 1)) stated that this categorical and be restricted to placement in a in section IV.C.3 of this preamble. exclusion should be rejected, because its developed area. When considering the Covered facilities employing nanoscale use could cause significant impacts; physical size and location of a proposed materials would be constructed and DOE has determined that this educational facility, a DOE NEPA operated in accordance with applicable categorical exclusion, by its terms and Compliance Officer would review the requirements to ensure worker safety in light of the integral element and surrounding land uses, the scale of the and to prevent environmental releases. extraordinary circumstances proposed facility relative to existing Therefore, DOE is retaining the requirements, is appropriate and would development, and the capacity of proposed language in the final not have the potential for significant existing roads and other infrastructure. categorical exclusion, with one impacts. DOE received comments from The NEPA Compliance Officer would exception. DOE is changing Center for Food Safety on behalf of itself have to determine that the size of the ‘‘biohazardous materials’’ to ‘‘hazardous and 3 other organizations (at page 4) proposed facility, in the context of its materials,’’ in the final categorical raising concerns that the environmental location and surroundings, was exclusion. Hazardous materials is a release of genetically engineered sufficiently small that it would not have broader category that includes organisms or synthetic organisms the potential to cause significant biohazardous materials, and thus better (including genetically engineered algae environmental impacts. Thus, DOE is reflects the range of materials that or synthetic biology) from a not proposing any modifications to this would need to be safely managed for microbiological or biomedical facility categorical exclusion. For further this type of research and development (including facilities to house such information, see discussion of ‘‘small’’ work. organisms for the production of and ‘‘small-scale’’ in section IV.C.3 of biofuels) could pose risks to local this preamble. B3.16 Research Activities in Aquatic ecosystems, during both the operation In addition, DOE received a comment Environments and decommissioning of these facilities. from Joyce Dillard (at page 1) that states, To simplify the categorical exclusion, In response, DOE points out that rather than the Federal government, are DOE is changing ‘‘salt water and facilities covered by this categorical responsible for education and its related freshwater’’ to ‘‘aquatic.’’ Aquatic, as exclusion must be constructed and facilities. DOE acknowledges this used herein, may refer to salt water, maintained in accordance with all comment and notes that the categorical freshwater, or areas with shifting applicable regulations, including exclusion is intended to address small delineation between the two; this is not provisions (e.g., the use of biological facilities that are generally educational a substantive change. In addition, DOE safety cabinets and chemical fume in nature, such as visitor centers, small is clarifying in the preamble that passive hoods) to ensure the containment of museums, libraries, and similar seismic techniques in item (c) refers to organisms that may pose environmental facilities. Such facilities may be part of activities (e.g., use of seismometers) that risks as well as the destruction of these a school or university. Therefore, DOE do not involve the introduction of organisms when they are no longer is retaining the proposed language in energy or vibration that would have the needed. Generally, these regulations and the final categorical exclusion. potential for significant environmental practices have been effective in impacts. preventing unintended releases of B3.15 Small-Scale Indoor Research A comment from Pacific Northwest research organisms and thereby and Development Projects Using National Laboratory (at page 2) prevented impacts to the environment Nanoscale Materials suggested that many of the activities from these organisms. Further, DOE A comment from Center for Food described in this categorical exclusion, received comments regarding the use of Safety on behalf of itself and 3 other such as sample collection, installation genetically engineered organisms, organizations (at page 1) stated that this of environmental monitoring devices, synthetic biology, noxious weeds, and categorical exclusion should be rejected, and other ecological research, should be non-native species, such as non-native because its use could cause significant allowed within the boundary of a algae in projects that may be impacts; DOE has determined that this marine sanctuary or wildlife refuge, if categorically excluded under this categorical exclusion, by its terms and conducted in a manner consistent with
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sanctuary goals and objectives. DOE DOE received comments regarding the B4.6 Additions and Modifications to agrees that, if the listed activities are use of genetically engineered organisms, Transmission Facilities authorized by the government agency synthetic biology, noxious weeds, and responsible for the management of the non-native species, such as non-native After further consideration, DOE will sanctuary or refuge, or after consultation algae, in projects that may be not adopt its proposal to apply this with such responsible agency when categorically excluded under this categorical exclusion to facilities that authorization is not applicable, then the section of the rule. For further ‘‘would not have the potential to cause activity may be categorically excluded information, see discussion of significant impacts beyond the under B3.16. Therefore, DOE is ‘‘Genetically engineered organisms, previously disturbed or developed modifying categorical exclusion B3.16 synthetic biology, governmentally facility area’’ and instead this (and B5.25) to now allow covered designated noxious weeds, or invasive categorical exclusion will be limited to actions within, or having effects on, species’’ in section IV.C.7 of this actions ‘‘within a previously disturbed existing or proposed marine sanctuaries, preamble. or developed facility area.’’ DOE is wildlife refuges, or governmentally making this change to conform the recognized areas of high biological DOE received a comment from categorical exclusion to others that sensitivity, if the action receives National Wildlife Federation (at page 4) relate to proposed actions in a authorization from, or after consultation expressing strong support for ‘‘removing previously disturbed or developed area. with, the responsible agency. The DOE unnecessary barriers to the In addition, after further consideration, NEPA Compliance Officer would take commercialization of deepwater DOE is making a clarifying concerns from the responsible agency offshore wind technology,’’ and stating improvement by moving the activity into account when considering whether that ‘‘[w]ith siting screens, research and examples to a separate sentence. For to apply this categorical exclusion. demonstration projects in these further information, see discussion of DOE also received a comment from technologies will not have significant ‘‘Previously disturbed or developed DOI (at page 1) stating that it has impacts.’’ DOE does not currently have area’’ in section IV.C.2 of this preamble. initiated the process of reviewing and the experience to support expanding the potentially revising or deleting some of categorical exclusion to include such B4.9 Multiple Uses of Transmission its own categorical exclusions. DOE had projects, but this may change as DOE Line Rights-of-Way relied on some of these DOI categorical gains experience over time. exclusions, as well as categorical A comment from Edison Electric exclusions from the Department of the Categorical Exclusions Applicable to Institute (at page 3) on this categorical Navy and the National Oceanic and Electrical Power and Transmission (B4) exclusion, for granting or denying Atmospheric Administration, when requests for multiple uses of a DOE is changing the title of this group developing this categorical exclusion. In transmission facility’s rights-of-way, response to the DOI comment, DOE is of categorical exclusions to state that requested that DOE specify that revising categorical exclusion B3.16 in they are applicable to ‘‘electrical power multiple uses need to accommodate the final rule to remove certain research and transmission,’’ rather than to technical and other concerns that may activities adapted from DOI’s categorical ‘‘power resources,’’ as used in the be raised by the owners of the exclusions. The remaining activities are existing regulations and the Notice of transmission facilities involved. This consistent with other Federal agencies’ Proposed Rulemaking. This change categorical exclusion is used by DOE existing categorical exclusions, as well better identifies the subject of this group entities, for example Power Marketing as activities included in other DOE of categorical exclusions. Administrations, in responding to a request regarding their own categorical exclusions, such as flow B4.1 Contracts, Policies, and transmission facility rights-of-way, not measurements (see categorical exclusion Marketing and Allocation Plans for those owned by other parties. Therefore, B3.1). Electric Power DOE received a comment from DOI (at DOE is retaining the proposed language page 2) expressing concern that DOE In the Notice of Proposed in the categorical exclusion in the final would categorically exclude proposed Rulemaking, DOE proposed to clarify rule. actions located in unsurveyed areas of the scope of this categorical exclusion the seafloor under categorical B4.10 Removal of Electric by stating that the contracts, policies, Transmission Facilities exclusions B3.16 and B5.25. The and marketing and allocation plans are comment suggested that DOE should ‘‘related to electric power acquisition or A comment from Edison Electric perform an assessment of survey data transmission.’’ After further Institute (at page 3) expressed agreement within the area of potential effect or consideration, DOE will not explicitly with the proposed changes to the complete an assessment of potential refer to transmission in this categorical categorical exclusion, but requested that seafloor impacts from the proposed exclusion; transmission activities are DOE stipulate that any permit holders activities before DOE makes a included in the contracts, policies, and and owners of facilities affected by the categorical exclusion determination. In marketing plans, or are covered abandonment must be given advance response, DOE notes that a NEPA primarily in other classes of actions, notice so they can protect their rights. Compliance Officer, when considering a This comment raises concerns unrelated proposed action in an unsurveyed area, such as categorical exclusion B4.11. to environmental review under NEPA, would gather additional information B4.4 Power Marketing Services and which is the scope of this regulation. about the proposed project site needed Activities to support a categorical exclusion For this reason, DOE is retaining its determination under B3.16 and B5.25. It Upon further consideration, DOE is proposed categorical exclusion as the is the responsibility of the DOE NEPA changing the example of ‘‘load shaping’’ final categorical exclusion. Compliance Officer to consider the to ‘‘load shaping and balancing.’’ Load DOE is changing the title of this potential for significant impacts and to balancing helps ensure system categorical exclusion to more closely consult with other agencies as necessary reliability by managing energy resources reflect the wording of the categorical when considering a proposed action. to be equal with load. exclusion.
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B4.11 Electric Power Substations and interconnections, and DOE has B5.13 Experimental Wells for the Interconnection Facilities determined that it is not necessary to Injection of Small Quantities of Carbon DOE is simplifying the wording of add one. Also, any proposed upgrade or Dioxide this categorical exclusion. In the Notice rebuild of existing powerlines would be A comment from Sandy Beranich (at of Proposed Rulemaking, DOE proposed subject to the same consideration page 2) expressed concern that the that actions under this categorical regarding connected actions as injection of carbon dioxide into exclusion be restricted to described above for categorical experimental wells should be allowed interconnecting new generation exclusion B4.11. only after completing an environmental resources that meet two conditions— assessment. The comment also inquired Categorical Exclusions Applicable to that the new generation resource would as to DOE experience with these wells Conservation, Fossil, and Renewable be eligible for a categorical exclusion and their potential impacts. DOE has Energy Activities (B5) and that it would be equal to or less identified, in the Technical Support than 50 average megawatts. DOE B5.3 Modification or Abandonment of Document, multiple environmental determined that these limitations on the Wells assessments and findings of no generation resource were more limiting significant impact and the results of than necessary to ensure appropriate DOE received a comment from the field projects that demonstrate DOE application of this categorical exclusion. Chesapeake Bay Foundation (at page 6) experience with wells of a scale covered The appropriate limit is that the that well abandonment should be by this categorical exclusion. These generation resource not pose the accompanied by revegetation and environmental assessments and findings potential for significant environmental rehabilitation of the area. In response, of no significant impact demonstrate impacts. This limit already is addressed DOE notes that abandonment of a well that the operation of such wells in DOE’s existing NEPA regulations, normally includes actions such as normally does not result in significant which state, in part, that before applying plugging, welding, or crimping and environmental impacts. a categorical exclusion, DOE must backfilling to ensure safety and prevent To simplify the categorical exclusion, determine that the proposed action is contamination from entering the well. DOE is changing ‘‘salt water and not ‘‘connected’’ (40 CFR 1508.25(a)(1)) DOE’s proposed language adds new freshwater’’ to ‘‘aquatic to other actions with potentially conditions, including that this environments.’’Aquatic, as used herein, significant impacts (10 CFR categorical exclusion could only apply may refer to salt water, freshwater, or 1021.410(b)(3)). if the well abandonment were to be areas with shifting delineation between DOE received a comment from the conducted ‘‘consistent with best the two; this is not a substantive change. Chesapeake Bay Foundation (at page 5) practices and DOE protocols,’’ such as B5.15, B5.16, B5.17, B5.18, and B5.25 stating that ‘‘a categorical exclusion those to address revegetation and Renewable Energy without any limitations or conditions on rehabilitation, among other issues. what can be fairly substantial Certain of DOE’s proposed categorical Therefore, DOE is retaining the development is inappropriate’’ and that exclusions for small-scale renewable proposed language in the categorical DOE should consider context and size to energy projects include a condition that ensure that actions with significant exclusion in the final rule. DOE notes, a proposed project ‘‘would incorporate impacts are not categorically excluded. however, that revegetation and appropriate control technologies and In applying this categorical exclusion, a rehabilitation may not always be part of best management practices.’’ DOE NEPA Compliance Officer considers a proposed abandonment, where, for received a comment from Defenders of context and size, along with other example, continued maintenance of Wildlife (at pages 2–5) recommending factors associated with potential for cleared areas may be necessary because that the control technologies and best significant impacts, and DOE prepares of ongoing operations near the management practices for five an environmental assessment or abandoned well. categorical exclusions (B5.15, B5.16, environmental impact statement if a B5.17, B5.18, and B5.25) include pre- B5.4 Repair or Replacement of categorical exclusion determination is development surveys, mitigation Pipelines, B5.5 Short Pipeline not appropriate. measures, continued monitoring, and Segments, and B5.8 Import or Export decommissioning/reclamation. In B4.12 Construction of Powerlines Natural Gas, With New Cogeneration response, DOE notes that it normally DOE is simplifying the wording of Powerplant would consider these and other practices during its NEPA review, this categorical exclusion with respect A comment from an anonymous to activities not in previously disturbed including when determining whether to individual (at page 2) objected to the or developed rights-of-way. Upon apply one of the categorical exclusions categorical exclusions for pipelines further consideration, DOE is removing referenced by the comment. the limitation on interconnection of new because ‘‘major pipelines blow up’’ and The comment first recommended generation resources proposed for this asserted that DOE has allowed major oil inclusion of pre-development surveys categorical exclusion for the same firms to fail to maintain pipelines and for endangered and threatened species reason described above for categorical has failed to adequately punish these and other sensitive resources. DOE exclusion B4.11. companies for oil spills. DOE’s already evaluates the likelihood of experience is that the types of pipeline potential impacts to threatened and B4.13 Upgrading and Rebuilding projects addressed by these categorical endangered species and sensitive Existing Powerlines exclusions do not pose significant risk ecological resources through the integral DOE is simplifying the wording of of accident and, indeed, repair, elements applicable to all appendix B this categorical exclusion by removing replacement, and similar activities can categorical exclusions, as well as the the limitation on interconnection of new reduce such risks. DOE is retaining the consideration of extraordinary generation resources. The existing proposed language in the categorical circumstances. Furthermore, categorical exclusion B4.13 does not exclusions in the final rule. predevelopment surveys may be include a condition regarding required as part of compliance with
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other regulations (e.g., those pertaining that restore impacted areas. DOE of land involved, associated impacts on to the Endangered Species Act, Bald and considers available information on ecosystems, and the economic interests Golden Eagle Protection Act) and would decommissioning/reclamation plans as of local communities who might be be considered by DOE in its decision part of its decision whether to apply a restricted from existing economic uses whether to apply a categorical exclusion categorical exclusion. Decommissioning of Federal lands. The comment said that to a particular proposed action. and reclamation plans are not such projects should not be built The second recommendation in the prerequisites for application of a without preparation of an comment was to include mitigation categorical exclusion and, while they environmental impact statement to measures to compensate for impacts to may be appropriate in some instances, consider alternatives. DOE agrees that ecological resources. In response, DOE does not elect to require them in some solar projects are large and compensating for impacts to biological every situation. appropriately analyzed in an resources is not required by NEPA for DOE is not making any changes to environmental assessment or application of a categorical exclusion, categorical exclusions B5.15, B5.16, environmental impact statement. and DOE declines to adopt such a B5.17, B5.18, and B5.25 in response to However, DOE is not making any requirement. However, DOE considers the comments discussed above. changes in response to this comment all mitigation measures and best B5.15 Small-Scale Renewable Energy because the categorical exclusion could management practices that are Research and Development and Pilot only be applied to projects ‘‘on a incorporated into a proposed action as Projects building or other structure’’ or on land part of its decision whether to apply any ‘‘generally less than 10 acres within a categorical exclusion. This approach is A comment from DOI (at page 3) previously disturbed or developed supported by the CEQ final guidance on asked for clarification regarding whether area.’’ At this scale, solar photovoltaic the ‘‘Appropriate Use of Mitigation and actions covered under the proposed projects normally would not have the Monitoring and Clarifying the categorical exclusion included both potential to cause significant impacts. Appropriate Use of Mitigated Findings research and development projects and For further information, see discussion of No Significant Impact’’ (CEQ pilot projects located in previously of ‘‘Previously disturbed or developed Mitigation and Monitoring Guidance) disturbed or developed areas. DOE is area’’ in section IV.C.2 of this preamble. (76 FR 3843; January 14, 2011). In its modifying the categorical exclusion to Two comments (from Granite guidance, CEQ noted that ‘‘[m]any more clearly state that both types of Construction Company (at pages 1–2) Federal agencies rely on mitigation to projects must be located in a previously and Amonix (at pages 1–2)) asked DOE reduce adverse environmental impacts disturbed or developed area. Therefore, to increase the allowable footprint as part of the planning process for a DOE is changing the first sentence to (acreage) for actions under this project, incorporating mitigation as read: ‘‘Small-scale renewable energy categorical exclusion to 100 acres when integral components of a proposed research and development projects and the projects would be located on heavily project design before making a small-scale pilot projects, provided that developed land such as mine or quarry determination about the significance of the projects are located within a sites. However, DOE does not have an the project’s environmental impacts. previously disturbed or developed adequate record to support a conclusion Such mitigation can lead to an area.’’ For further information, see that larger photovoltaic systems, environmentally preferred outcome and discussion of ‘‘Previously disturbed or including up to 100 acres, normally in some cases reduce the projected developed area’’ in section IV.C.2. of would not have the potential for impacts of agency actions to below a this preamble. Another comment significant environmental impacts. For threshold of significance. An example of requested that the term ‘‘small-scale’’ be all proposed projects, including those at mitigation measures that are typically defined. For further information, see the mine and quarry locations, DOE included as part of the proposed action discussion of ‘‘small’’ and ‘‘small-scale’’ would need to consider numerous site- are agency standardized best in section IV.C.3 of this preamble. specific factors, including the current management practices such as those DOE received comments regarding the state of animal and plant systems, developed to prevent storm water runoff use of genetically engineered organisms, reclamation, and alternative uses (e.g., or fugitive dust emissions at a synthetic biology, noxious weeds, and grazing). The scale of construction construction site’’ (CEQ Mitigation and non-native species, such as non-native activities and the potential impacts for Monitoring Guidance). algae, in projects that may be systems on 100 acres of land could be The comment also recommended categorically excluded under this significantly different than those for a continued monitoring of environmental section of the rules. For further project located on 10 acres or less. DOE impacts resulting from categorically information, see discussion of will continue to collect and review data excluded actions. In response, ongoing ‘‘Genetically engineered organisms, and could revise or add a new monitoring is a part of many DOE synthetic biology, governmentally categorical exclusion at a future time, if programs, often in conjunction with an designated noxious weeds, or invasive warranted. At a minimum, DOE would environmental management system, and species’’ in section IV.C.7 of this consider this during the next periodic private project proponents may include preamble. review of its categorical exclusions. such monitoring (e.g., for compliance For discussion of additional A comment from William Kirk with environmental protection comments on this categorical exclusion, Williams (at page 1) also expressed requirements). However, when DOE is see ‘‘B5.15, B5.16, B5.17, B5.18, and concerns regarding negative impacts to providing funding, its ability to require B5.25—Renewable energy’’ above in this species such as the sage grouse from or oversee ongoing monitoring may be preamble. activities under this categorical limited. In sum, DOE supports the exclusion. Under integral element objective of monitoring, but is not able B5.16 Solar Photovoltaic Systems B(4)(ii), a provision applicable to all to ensure that monitoring occurs in all DOE received a comment from categorical exclusions in appendix B, circumstances. William Kirk Williams (at page 1) DOE would not categorically exclude an The fourth recommendation in the objecting to DOE’s proposed categorical action with the potential for significant comment was to include exclusion for solar photovoltaic projects impacts on threatened and endangered decommissioning/reclamation plans because of the potentially large amount species, including Federal and state-
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listed and proposed species and persons, so that the examples now read This restriction, along with the otherwise Federally protected species. ‘‘(such as from shadow flicker and other condition that wind turbines must have For discussion of additional visual effects, and noise).’’ DOE also is a total height generally less than 200 comments on this categorical exclusion, changing a condition that a proposed feet and be sited within a previously see ‘‘B5.15, B5.16, B5.17, B5.18, and action ‘‘would not have the potential to disturbed or developed area, limits the B5.25—Renewable energy’’ above in this cause significant impacts on bird or bat potential scale of actions under this preamble. species’’ to ‘‘would not have the categorical exclusion to those that B5.17 Solar Thermal Systems potential to cause significant impacts on would not require large parcels of land. bird or bat populations.’’ The DOE has identified, in the Technical For DOE’s response to comments on appropriate context for considering Support Document, multiple this categorical exclusion, see potential impacts is the local environmental assessments and findings discussion of ‘‘B5.15, B5.16, B5.17, populations of birds and bats (including of no significant impact that B5.18, and B5.25 Renewable energy’’ those nesting or foraging in, or flying demonstrate DOE experience with wind above in this preamble. through, the vicinity of the proposed turbine projects of the scale covered by B5.18 Wind Turbines project site). this categorical exclusion. These DOE also received several other environmental assessments and findings In response to comments, DOE is comments in response to which DOE is of no significant impact demonstrate making three changes to the categorical not making changes to the categorical that the construction of a small number exclusion. A comment from Pacific exclusion. As noted previously (section of wind turbines normally does not Northwest National Laboratory (at page IV.C.4), DOE received comments on its result in large parcels of land being 2) asked for exclusionary wording proposed use of ‘‘would not have the affected or significant environmental stating that wind turbines would not be potential for significant impact’’ in a impacts. For further information, see located in an established marine number of its categorical exclusions, discussion of ‘‘small’’ and ‘‘small-scale’’ sanctuary or wildlife refuge. In response including B5.18. In the context of in section IV.C.3 of this preamble. to the comment, DOE is limiting the categorical exclusion B5.18, comments Another comment (from National categorical exclusion to land activities asserted that the phrase would be open Wildlife Federation (at page 3)) by adding the following sentence to the to interpretation or was too vague. DOE suggested that DOE had not taken into end of the categorical exclusion: is including the limitations ‘‘would not consideration the ‘‘non-footprint’’ and ‘‘Covered actions include only those have the potential to cause significant potential cumulative impacts of wind related to wind turbines to be installed impacts on bird or bat populations’’ and turbines on bird, bat and wildlife on land.’’ DOE also received a comment ‘‘would not have the potential to cause behavior, migration pathways or habitat. supporting the use of categorical significant impacts to persons (such as A DOE NEPA Compliance Officer would exclusions for deepwater floating from shadow flicker and other visual consider potential direct, indirect, and offshore wind energy projects. DOE does effects, and noise)’’ in categorical cumulative impacts, as well as not currently have the experience to exclusion B5.18 to highlight the types of extraordinary circumstances when support expanding the categorical potential impacts that a NEPA reviewing a proposed action and making exclusion to include such projects, but Compliance Officer must consider when a NEPA determination. this may change as DOE gains reviewing a proposed action specific to DOE received a comment from DOI (at experience over time. Second, DOE wind turbines. As explained in section page 3) asking for the basis for the received comments (e.g., from Defenders IV.C.4, this is consistent with CEQ’s limitation, as stated in the Notice of of Wildlife (at page 4), Sandy Beranich NEPA regulations and its Categorical Proposed Rulemaking, that covered (at page 2)) expressing uncertainty or Exclusion Guidance. actions would be for commercially concern as to the scope or size of a DOE received comments that available wind turbines ‘‘with a total proposed action to which this expressed concern that the phrase height generally less than 200 feet.’’ categorical exclusion may apply, asking ‘‘previously disturbed or developed This limitation is based on several whether this categorical exclusion could area’’ was too vague and prone to considerations. DOE is choosing to limit cover the establishment of a wind farm. interpretation. As indicated in its Notice this categorical exclusion to actions that In order to clarify that DOE intends the of Proposed Rulemaking, DOE is are small-scale (i.e., a small number of categorical exclusion to apply to limiting categorical exclusion B5.18 to small turbines). The ‘‘generally less than proposals for a limited number of wind actions located within previously 200 feet’’ limitation is intended to avoid turbines, DOE is changing the first disturbed or developed areas to avoid potential conflicts with airports and sentence of the categorical exclusion to potential impacts to resources. For aviation navigation aids, and to avoid refer to a small number of wind turbines further information, see discussion of potential commercial and military air (generally not more than 2), which is the ‘‘Previously disturbed or developed safety issues. number of turbines generally analyzed area’’ in section IV.C.2 of this preamble. The nature of potential impacts in the environmental assessments and DOE received a comment from related to turbine height on visual or findings of no significant impact William Kirk Williams (at page 1) that biological resources for any proposed identified in the Technical Support expressed concern over the scale of action will vary depending on the Document. Third, DOE identified wind farms as too large and consuming nature of the site. DOE is including distances for siting turbines from air too much land. Other comments (e.g., other limitations in B5.18 (e.g., ‘‘would safety and navigational devices in from DOI (at page 3), Defenders of not have the potential to cause nautical miles in its Notice of Proposed Wildlife (at page 4), Sandy Beranich (at significant impacts on bird or bat Rulemaking. DOE is adding the page 2)) suggested limiting this populations’’) that better address issues conversion to miles to ensure the categorical exclusion to a single turbine related to visual, biological, and other limitation is readily understood by both or specifying the scale in terms of acres. resources in order to highlight the types experts and the general public. DOE is changing the categorical of potential impacts that a NEPA In addition, upon further exclusion to limit covered actions to Compliance Officer must consider when consideration, DOE is clarifying the those that involve only ‘‘a small number reviewing a proposed action specific to examples of significant impacts to of (generally not more than 2) * * *.’’ wind turbines.
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DOE also received a comment from Compliance Officer considers applying covered actions ‘‘would be in Defenders of Wildlife (at page 4) focused this categorical exclusion to a proposed accordance with applicable on best management practices and action, DOE would determine requirements (such as local land use monitoring measures associated with significance of impacts on birds and and zoning requirements) in the categorical exclusion B5.18. A comment bats based on the specific site proposed project area.’’ DOE clarifies from William Kirk Williams (at page 1) conditions of the proposed wind that this could include, but is not expressed concern that B5.18 lacks a turbine(s). limited to, State, local or other mechanism for requiring that actions A second comment (from William requirements regarding the protection of covered under this categorical exclusion Kirk Williams (at page 1)) pointed out special or sensitive species, migration would incorporate best management that wind turbines kill birds, and pathways, and habitats. Therefore, DOE practices. Both of these comments were therefore, constitute a violation of the is not making a change based on this related to using best management Migratory Bird Treaty Act. DOE agrees comment. practices to reduce impacts to birds and that impacts to birds are an important Another comment from National bats under categorical exclusion B5.18. concern associated with this renewable Wildlife Federation (at page 3) DOE considers all mitigation measures technology, and DOE is modifying the suggested that DOE include a and best management practices that are integral elements applicable to requirement that the actions covered be incorporated into a proposed action as appendix B categorical exclusions by in accordance with a municipal, state, part of its decision whether to apply any adding that a proposal must be in or Federal wind turbine siting guideline categorical exclusion. This approach is compliance with the Bald and Golden such as the U.S. Fish and Wildlife supported by the CEQ Mitigation and Eagle Protection Act and the Migratory Service, Draft Land-Based Wind Energy Monitoring Guidance. DOE supports the Bird Treaty Act. As indicated in its Guidelines (April 2011). The U.S. Fish objective of better design and planning Notice of Proposed Rulemaking, DOE is and Wildlife Service has since issued to limit impacts to birds and bats and also including a limitation that the revised draft guidelines (July 2011) and has therefore included a limitation in action not have the potential to cause continues related discussions with the B5.18 that covered actions would significant impacts on bird or bat interested public and other Federal ‘‘incorporate appropriate control populations, so that a NEPA agencies. DOE will continue following technologies and best management Compliance Officer must consider the the development of these guidelines and practices.’’ Whether or not such impact on these populations specifically considering how to most appropriately practices are included in the design of when reviewing a proposed action to apply them to its activities. However, a wind turbine proposed action would determine whether it fits this categorical DOE does not find it appropriate to be evident at the time that a DOE NEPA exclusion. make conformance to the guidelines a Compliance Officer considers the Another comment (from Sandy condition of applying a categorical specific details of a proposed action. Beranich (at page 2)) requested that DOE exclusion. The guidelines are still being The comment from Defenders of include a requirement that a covered developed, and the U.S. Fish and Wildlife (at page 5) also recommended action under categorical exclusion B5.18 Wildlife Service does not consider them continued monitoring of environmental would require agreement from the U.S. mandatory at this time. Thus, DOE is impacts resulting from categorically Fish and Wildlife Service for the size not making any changes to categorical excluded actions. In response, ongoing and location. Under integral element exclusion B5.18 based on this comment. monitoring is a part of many DOE B(4)(ii), applicable to all categorical For discussion of additional programs, often in conjunction with an exclusions in appendix B, DOE would comments on this categorical exclusion, environmental management system, and not categorically exclude an action with see ‘‘B5.15, B5.16, B5.17, B5.18, and private project proponents may include the potential for significant impacts on B5.25—Renewable energy’’ above in this such monitoring (e.g., for compliance threatened and endangered species, preamble. including Federal and state-listed and with environmental protection B5.19 Ground Source Heat Pumps requirements). However, when DOE is proposed species and otherwise providing funding, its ability to require Federally protected species. Further, After further consideration, DOE is or oversee ongoing monitoring may be DOE consults with other agencies, as making two changes to the categorical limited, due to factors such as the terms required. While the U.S. Fish and exclusion. The first is to address the of the financial award and the extent of Wildlife Service has some authority potential for a ground source heat pump Federal control over the lifetime of the related to the protection of such species, system to allow cross-contamination project. In sum, DOE supports the it does not have statutory or regulatory between aquifers, during the objective of monitoring but is not able authority for siting wind turbines construction or operation of the heat to ensure that monitoring occurs in all generally. The authority for siting wind pump system. The second is to correct circumstances. turbines typically rests with state and/ a typographical error; DOE intended to Several comments (e.g., from DOI (at or local governments that make say ‘‘school or community center’’ page 3), William Kirk Williams (at page decisions with regard to land use, rather than ‘‘school and community 1)) raised issues related to impacts to zoning, or other natural resource uses. center.’’ Therefore, DOE is changing the biological resources, namely on impacts Thus, DOE is not making any changes first sentence of the categorical to bird and bat species. A comment from to categorical exclusion B5.18 based on exclusion to read: ‘‘The installation, DOI (at page 3) asked DOE to describe this comment. modification, operation, and removal of ‘‘how the determination [would be] A comment from National Wildlife commercially available small-scale made that a significant number of birds Federation (at page 3) requested that ground source heat pumps to support or bats would not be affected.’’ Because DOE include a specific requirement that operations in single facilities (such as a a determination of significance under wind turbines must not be sited in school or community center) or NEPA depends on the context and migration corridors or pathways, habitat contiguous facilities (such as an office intensity of an individual proposal, areas, or areas where birds concentrate, complex) (1) only where (a) major potential significance of the impacts such as wetlands or lakes. As indicated associated activities (such as drilling from wind turbines on birds and bats is in its Notice of Proposed Rulemaking, and discharge) are regulated, and (b) site-specific. At the time that a NEPA DOE is including a limitation that appropriate leakage and contaminant
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control measures would be in place adding specific restrictions on biomass synthetic biology, noxious weeds, and (including for cross-contamination sourcing, although an applicant’s use of non-native species, such as non-native between aquifers) * * *.’’ biomass certified as sustainable could algae, in projects that may be be considered by the NEPA Compliance categorically excluded under this B5.20 Biomass Power Plants Officer in determining whether a section of the rules. For further DOE received comments (e.g., from categorical exclusion is appropriate. information, see discussion of National Wildlife Federation (at page 4) Regarding pollution that could result ‘‘Genetically engineered organisms, and Center for Food Safety on behalf of from biomass combustion, the synthetic biology, governmentally itself and 3 other organizations (at page categorical exclusion requires that any designated noxious weeds, or invasive 5)) expressing concern about the covered biomass power plant not affect species’’ in section IV.C.7 of this impacts of biomass used in energy the air quality attainment status of the preamble. production. These concerns included area, not have the potential to cause a B5.21 Methane Gas Recovery and impacts to wildlife habitat from the significant increase in the quantity or Utilization System conversion of natural forests to rate of air emissions, and not have the monocultures for biomass production potential to cause significant impacts to DOE received a comment from the and the use of experimental biomass water resources. For these reasons, DOE Blue Ridge Environmental Defense technologies employing genetically is retaining the proposed language in League (at page 1) stating that methane engineered organisms. DOE received a the categorical exclusion in the final gas recovery and utilization systems are comment from Center for Food Safety rule. either negative or associated with on behalf of itself and 3 other A comment from Center for Food negative impacts. A DOE NEPA organizations (at page 5) stating that Safety on behalf of itself and 3 other Compliance Officer would evaluate the biomass harvesting (or sourcing) could organizations (at page 5) expressed size and output of proposed methane result in widespread forest destruction concern about potential impacts on gas systems to determine whether the and soil degradation. Another comment global climate change, stating that proposals meet the integral elements of (from National Wildlife Federation (at burning biomass can emit almost 1.5 the categorical exclusion (listed in page 4)) suggested that biomass be times as much global warming pollution appendix B, paragraph (4)) and whether certified by the Forest Stewardship per unit of energy as coal, and that there are any associated extraordinary Council or the Council for Sustainable harvesting and transporting biomass circumstances that would affect the Biomass Production to address the would add to greenhouse gas emissions. significance of impacts, including impact of biomass sourcing on forest A comment from the Blue Ridge impacts to wildlife and habitat. The stewardship and sustainability. Environmental Defense League (at page categorical exclusion also requires that Comments from Center for Food Safety 1) stated that biomass energy source any covered methane gas system not on behalf of itself and 3 other impacts are large, and that labeling such have the potential to cause a significant organizations (at page 5) expressed projects as ‘‘carbon neutral’’ is a increase in the quantity or rate of air concern about significant air pollution mistaken concept without scientific emissions, be in accordance with that could result from biomass basis. DOE considered these issues applicable requirements, and combustion, when compared to other when developing the categorical incorporate appropriate control fuels. Another comment (from Friends exclusion. For example, DOE reviewed technologies and best management of the Earth (at pages 1–2) and Center the Environmental Protection Agency’s practices. Because these measures for Food Safety on behalf of itself and Call for Information regarding would address potential significant 3 other organizations (at page 1)) stated greenhouse gas emissions from impacts from these facilities, DOE is that this categorical exclusion should be bioenergy and other biogenic sources retaining the proposed language in the rejected, because its use could cause (75 FR 4117; July 15, 2010), which final categorical exclusion. significant impacts; DOE has noted that the issue is complex and B5.24 Drop-in Hydroelectric Systems determined that this categorical requested comments on analytical exclusion is appropriate, in part, approaches that would apply to biomass A comment from Pacific Northwest because of the requirement to consider facilities. Partly because of these issues, National Laboratory (at page 2) extraordinary circumstances. the categorical exclusion explicitly suggested that limiting this categorical A DOE NEPA Compliance Officer limits covered actions to those that exclusion to stream and river areas would evaluate the size and output of would not have the potential to cause a upgradient of ‘‘natural’’ fish barriers is proposed biomass power plants to significant increase in the quantity or unduly restrictive because it excludes, determine whether the proposals meet rate of air emissions. DOE intends that for example, a small-scale hydroelectric the integral elements of the categorical ‘‘emissions’’ includes greenhouse gas system in an irrigation canal that uses exclusion (listed in appendix B, emissions. Further, the small-scale existing fish screens or in a river system paragraph (4)) and whether there are biomass plants under this categorical above an existing dam. DOE agrees that any associated extraordinary exclusion would have correspondingly it is the effectiveness of the fish circumstances that would affect the small-scale greenhouse gas emissions, barrier—not whether the barrier is significance of impacts, including and would produce power that may natural or man-made—that is relevant to impacts to wildlife and habitat. In offset energy that otherwise might have the potential environmental impacts. DOE’s experience, the limitations on the been produced by fossil energy Two important indicators of future size and energy output of covered facilities, resulting in a potential for net effectiveness of an existing fish barrier biomass power plants ensure that any beneficial impacts on climate change. are whether it is planned for removal (as covered action would not consume Impacts from harvesting fuel would be are man-made barriers in several river quantities of biomass that could limited by the size of the facility (and systems) and whether it is to be foreseeably impact soil quality or forest thus the total fuel needs) and modified to facilitate fish moving sustainability, nor would such small- consideration of factors such as existing upstream past the barrier. Thus, DOE is scale projects result in the conversion of land use plans. revising the categorical exclusion to natural forests to monocultures of DOE received comments regarding the remove the word ‘‘natural’’ and to biomass crops. Therefore, DOE is not use of genetically engineered organisms, include a condition that the system ‘‘be
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located up-gradient of an existing require significant dredging or if the additional discussion on the term anadromous fish barrier that is not device itself could interfere with ‘‘small-scale,’’ see DOE’s discussion of planned for removal and where fish shipping navigation. Under integral ‘‘small’’ and ‘‘small-scale’’ that appears passage retrofit is not planned. * * *’’ element B(1) (appendix B, paragraph in section IV.C.3 of this preamble. Another comment from Pacific (1)) to 10 CFR part 1021, to fit within A comment from the Ocean Northwest National Laboratory (at page the classes of actions under appendix B Renewable Energy Coalition (at page 5) 2) asked DOE to restrict this categorical categorical exclusions, the proposed suggested that DOE provide guidance as exclusion to activities that would ‘‘not action must be one that would not to the meaning of ‘‘biologically have the potential to cause impacts to ‘‘threaten a violation of applicable, sensitive.’’ Areas of high biological threatened or endangered species’’ or statutory, or permit requirements for sensitivity are defined in the categorical significant impacts to fish or wildlife. environment, safety, and health.’’ exclusion to include ‘‘areas of known Before making a categorical exclusion Actions covered by this categorical ecological importance, whale and determination, a NEPA Compliance exclusion would be subject to, and marine mammal mating and calving/ Officer must assess whether the would often require permits under, pupping areas, and fish and invertebrate proposed action will have the potential Section 10 of the Rivers and Harbors spawning and nursery areas recognized to cause significant impacts to listed or Act, which regulates structures placed as being limited or unique and proposed threatened and endangered in ‘‘navigable waters of the United vulnerable to perturbation; these areas species. See integral element B(4)(ii). States,’’ and Section 404 of the Clean can occur in bays, estuaries, near shore, Thus, potential significant impacts to Water Act, which regulates the and far offshore, and may vary threatened and endangered species and discharge of dredged or fill material into seasonally.’’ Information regarding areas fish and wildlife will be considered. waters of the United States. These of high biological sensitivity is available The comment seeks inclusion of a regulations and statutes are expected to from local, state, and Federal regulatory higher standard—any potential impact address the comment; therefore, DOE is and natural resource management to threatened and endangered species— not making any changes based on this agencies. It is not uncommon for a which is not the correct standard comment. categorical exclusion determination to required under NEPA. However, in A comment from the Ocean require some analysis to determine response DOE is adding a reference to Renewable Energy Coalition (at page 4) whether any extraordinary the integral element listed at B(4)(ii), asked if a transmission line connecting circumstances exist that would render which requires consideration of the the proposed generation device to the the categorical inapplicable to a impacts on threatened and endangered grid would be covered under this particular proposal. Determining the species, including Federal and state- categorical exclusion. Any action presence of conditions that would listed and proposed species and subject to a NEPA determination, constitute an area of high biological otherwise Federally protected species. whether an environmental impact sensitivity would be the responsibility DOE also received a comment from statement, environmental assessment, or of the DOE NEPA Compliance Officer, the Blue Ridge Environmental Defense categorical exclusion, must include all in consultation with the project League (at page 1) expressing concern necessary components of that action. In proponent, and would necessarily occur with the proposed categorical exclusion this case, the inclusion of one or more before a categorical exclusion was for drop-in hydroelectric systems. DOE transmission lines connecting the granted. has concluded that such systems generation device to the electrical grid A comment from Sandy Beranich (at meeting the requirements of the as part of the proposed action would not page 2) noted that marine areas are too categorical exclusion (i.e., they would prevent the application of the fragile for a variety of projects that could involve no storage or diversion of categorical exclusion, unless some include the use of chemicals or invasive stream or river water, they would be aspect of the installation, character, or work and suggested that actions under located up-gradient of an existing path of the line was inconsistent with this categorical exclusion warrant an anadromous fish barrier, and one or more of the limitations described environmental assessment level of installation would be accomplished in the categorical exclusion or the analysis. Further, the comment without use of heavy equipment and integral elements, or if extraordinary requested that DOE limit the scale of would involve no major construction or circumstances were present. projects under this categorical exclusion modification of stream or river Several comments (e.g., from DOI (at to allow only small projects in very channels) normally would not have the page 3) and the Ocean Renewable specific areas. As indicated in its Notice potential to cause significant impacts. Energy Coalition (at page 4)) asked that of Proposed Rulemaking, DOE is the term ‘‘small-scale’’ be defined, and limiting the scope and location of B5.25 Small-Scale Renewable Energy one comment (from the Ocean activities under this categorical Research and Development and Pilot Renewable Energy Coalition (at page 4)) exclusion to ensure that renewable Projects in Aquatic Environments suggested that a power limit of 5 energy research is conducted in a To simplify the categorical exclusion, megawatts be added to the categorical manner that would not have the DOE is changing ‘‘salt water and exclusion. Whether a proposal is small- potential to cause significant impacts. freshwater’’ to ‘‘aquatic.’’ Aquatic, as scale would be determined by the NEPA DOE received a comment from the used herein, may refer to salt water, Compliance Officer based on the context Ocean Renewable Energy Coalition (at freshwater, or areas with shifting and intensity of the proposed action, page 5) noting that an offshore wave delineation between the two; this is not which would be determined by the site pilot project identified in a document a substantive change. A comment from conditions and nature of the proposal. cited in DOE’s Technical Support Pacific Northwest National Laboratory Such limitations are more meaningful Document for the Notice of Proposed (at page 2) asked that additional than a megawatt limit, as there is not Rulemaking was located in a marine restrictions be added to the categorical necessarily a direct correlation between sanctuary, yet was still deemed to have exclusion to preclude the installation of generation capacity and potential minimal impacts. In addition, a a small-scale renewable energy research environmental impacts for the various comment from Pacific Northwest and development or pilot project device, technologies that could be addressed National Laboratory (at page 2) if the installation of the device would under this categorical exclusion. For suggested that many of the activities
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described in categorical exclusion conditions outlined in categorical DOE received a comment from Sandy B3.16—a related categorical exclusion exclusion B5.25. In response, if a Beranich (at page 2) that acknowledged for activities in aquatic environments— condition is not met, then the DOE that cleanup costs have increased since should be allowed within the boundary NEPA Compliance Officer would not the categorical exclusion was first of a marine sanctuary or wildlife refuge apply this categorical exclusion and established, but questioned whether a if conducted in a manner consistent would prepare an environmental $10 million cleanup could appropriately with sanctuary goals and objectives. assessment or environmental impact be considered ‘‘small-scale.’’ The size of Therefore, DOE is modifying categorical statement, as appropriate. Another typical small-scale cleanup actions with exclusion B5.25 (and B3.16) to now comment (from DOI (at page 3)) which DOE has experience has not allow covered actions within, or having requested that DOE clarify the meaning changed, nor have the environmental effects on, existing or proposed marine of ‘‘the construction of permanent impacts resulting from these actions sanctuaries, wildlife refuges, or devices.’’ DOE also received a comment increased. However, the costs of governmentally recognized areas of high from DOI (at page 2) expressing concern completing these actions have increased biological sensitivity, if the action that it would categorically exclude due to inflation. Projects meeting the receives authorization from, or after proposed actions located in unsurveyed $10 million limit, along with the other consultation with, the responsible areas of the seafloor under categorical limitations on the scope of the agency. The DOE NEPA Compliance exclusions B3.16 and B5.25. See categorical exclusion, normally would Officer would take concerns from the explanation under categorical exclusion not have the potential for significant responsible agency into account when B3.16, above. impacts. For further information, see considering whether to apply this DOE received comments regarding the discussion of ‘‘small’’ and ‘‘small-scale’’ categorical exclusion. For further use of genetically engineered organisms, in section IV.C.3 of this preamble. discussion, see discussion of categorical synthetic biology, noxious weeds, and After further consideration, to clarify exclusion B3.16, above. non-native species, such as non-native the cost limitation by accounting for DOE received a comment from inflation over time, DOE is inserting National Wildlife Federation (at page 4) algae, in projects that may be categorically excluded under this ‘‘(in 2011 dollars)’’ after ‘‘10 million expressing strong support for ‘‘removing dollars.’’ unnecessary barriers to the section of the rules. For further commercialization of deepwater information, see discussion of 10. Appendix C and Appendix D offshore wind technology,’’ and stating ‘‘Genetically engineered organisms, synthetic biology, governmentally C7 Contracts, Policies, and Marketing that ‘‘with siting screens, research and and Allocation Plans for Electric Power demonstration projects in these designated noxious weeds, or invasive technologies will not have significant species’’ in section IV.C.7 of this After further consideration, DOE will impacts.’’ DOE does not currently have preamble. not explicitly refer to transmission in the experience to support expanding the For discussion of additional this class of actions; transmission categorical exclusion to include such comments on this categorical exclusion, activities are included in the contracts, projects, but this may change as DOE see ‘‘B5.15, B5.16, B5.17, B5.18, and policies, and marketing plans, or are gains experience over time and will be B5.25—Renewable energy’’ above in this covered primarily in other classes of considered when DOE conducts its next preamble. actions, such as the group of categorical periodic review of its categorical exclusions under B4. In addition, to exclusions. Another comment (from Categorical Exclusions Applicable to improve clarity, DOE is removing the Friends of the Earth (at page 2) and Environmental Restoration and Waste previously proposed condition that the Center for Food Safety on behalf of itself Management Activities (B6) new generation resource ‘‘would not be and 3 other organizations (at page 1)) B6.1 Cleanup Actions eligible for categorical exclusion under stated that this categorical exclusion this part.’’ DOE normally would not should be rejected, because its use could DOE received a comment from Tri- prepare an environmental assessment cause significant impacts; DOE has Valley CAREs (at page 4) that when a categorical exclusion would determined that this categorical questioned the basis for finding that the apply. Therefore, the condition is exclusion is appropriate, in part, proposed increase in the cost limitation unnecessary and potentially confusing. because of the requirement to consider (from approximately $5 million to approximately $10 million) and the C8 Protection of Cultural Resources extraordinary circumstances. and Fish and Wildlife Habitat DOE received a comment from DOI (at proposed removal of the time limitation page 2) suggesting that it discuss or (5 years) from this categorical exclusion DOE received a comment from Sandy consider impacts related to will not result in potentially significant Beranich (at page 2) asking what DOE decommissioning of authorized impacts to the environment. In DOE’s means by ‘‘large-scale,’’ a term that temporary structures or devices under experience, in light of other limitations distinguishes this environmental categorical exclusion B5.25. The on the scope of this categorical assessment category from categorical comment expressed concern regarding exclusion and the integral elements, exclusion B1.20 for ‘‘small-scale’’ impacts from both planned increasing the cost limit would not add proposals of this type. DOE NEPA decommissioning and unplanned greatly to the types of projects that Compliance Officers use their ‘‘cessation of operation’’ or failure. DOE would be covered by this categorical professional expertise and judgment to agrees that potential impacts associated exclusion. The time for project determine whether a proposal meets a with decommissioning and similar implementation is indirectly affected by categorical exclusion for ‘‘small-scale’’ activities would be appropriate to the cost limit; e.g., a container removal activities when no additional limitation consider when determining whether a operation would be limited by its total is specified. A proposal that a NEPA particular proposed action qualifies for cost even without an explicit time limit. Compliance Officer does not consider a categorical exclusion. Another Further, based on DOE’s experience, the small-scale under such an evaluation comment (from DOI (at page 3)) asked amount of time that a cleanup action would fit within this environmental for clarification on what happens if a requires is not a reliable indicator of its assessment category. For further proposed action does not meet the potential environmental impacts. information, see discussion of ‘‘small’’
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and ‘‘small-scale’’ in section IV.C.3 of covered primarily in other classes of of an initial regulatory flexibility this preamble. In addition, under the actions, such as the group of categorical analysis for any rule that by law must DOE NEPA regulations (10 CFR exclusions under B4. be proposed for public comment, unless 1021.321), DOE may prepare an the agency certifies that the rule, if V. Procedural Requirements environmental assessment on any action promulgated, will not have a significant at any time in order to assist agency Review Under Executive Order 12866 economic impact on a substantial number of small entities. As required by planning and decisionmaking. DOE is Today’s final rule has been Executive Order 13272, ‘‘Proper retaining the proposed language in this determined not to be a significant Consideration of Small Entities in class of action in the final rule. regulatory action under Executive Order Agency Rulemaking’’ (67 FR 53461; 12866, ‘‘Regulatory Planning and C12 Energy System Demonstration August 16, 2002), DOE published Review,’’ 58 FR 51735 (October 4, 1993). Actions procedures and policies on February 19, Accordingly, this action was not subject DOE received a comment from the 2003, to ensure that the potential to review under that Executive Order by Chesapeake Bay Foundation (at page 6) impacts of its rules on small entities are the Office of Information and Regulatory that the scale of the project should be properly considered during the specified to clarify whether a project is Affairs of the Office of Management and rulemaking process (68 FR 7990). DOE covered in this ‘‘limited exclusion.’’ The Budget (OMB). has made its procedures and policies comment is noted, but classes of actions Review Under National Environmental available on the Office of the General in appendix C are not categorical Policy Act Counsel’s Web site: http://energy.gov/gc exclusions; they are categories for which under GC Guidance/Opinions, In this rule, DOE establishes, an environmental assessment is Rulemaking Policy. modifies, and clarifies procedures for normally prepared to provide a basis for DOE reviewed today’s final rule under considering the environmental effects of determining whether to prepare an the provisions of the Regulatory DOE actions within DOE’s environmental impact statement or Flexibility Act and the procedures and decisionmaking process, thereby issue a finding of no significant impact. policies published on February 19, enhancing compliance with the letter DOE is retaining the proposed language 2003. This final rule revises DOE’s and spirit of NEPA. The Council on in this class of actions in the final rule. categorical exclusions, and makes Environmental Quality regulations do Upon further consideration, DOE is certain other changes, that will help not direct agencies to prepare a NEPA adding decommissioning to the list of reduce the cost and time associated with analysis or document before actions. For proposed new facilities, completing the environmental review establishing Agency procedures that DOE normally would address siting for certain proposed actions. supplement the CEQ regulations for construction, operation, and In the Notice of Proposed implementing NEPA. Agencies are decommissioning in the same review Rulemaking, DOE tentatively certified required to adopt NEPA procedures that under NEPA. that this rule would not have a In addition, DOE has determined that establish specific criteria for, and significant economic impact on a the final sentence of C12 is unnecessary identification of, three classes of substantial number of small entities and and, thus, is deleting the sentence. This actions: those that normally require did not prepare a regulatory flexibility deletion does not change the meaning or preparation of an environmental impact analysis for this rulemaking. DOE scope of the paragraph. statement; those that normally require received no comments on the preparation of an environmental certification, and the factual basis for C15 Research and Development assessment; and those that are DOE’s certification is unchanged. Thus, Incinerators and Nonhazardous Waste categorically excluded from further DOE maintains its certification that this Incinerators NEPA review (40 CFR 1507.3(b)). rule would not have a significant Upon further consideration, DOE is Categorical exclusions are one part of economic impact on a substantial adding decommissioning to the list of those agency procedures, and therefore number of small entities. DOE actions. For proposed new facilities, establishing categorical exclusions does transmitted the certification and DOE normally would address siting not require preparation of a NEPA supporting statement of factual basis to construction, operation, and analysis or document. Agency NEPA the Chief Counsel for Advocacy of the decommissioning in the same review procedures are procedural guidance to Small Business Administration under NEPA. assist agencies in the fulfillment of pursuant to 5 U.S.C. 605(b). agency responsibilities under NEPA, but D1 [Reserved: Strategic Systems] are not the agency’s final determination Review Under Paperwork Reduction Act After further consideration, DOE is of what level of NEPA analysis is This rulemaking will impose no new removing this class of actions because required for a particular proposed information or record-keeping the term ‘‘strategic systems’’ is no longer action. The requirements for requirements. Accordingly, OMB in use and the referenced Order no establishing agency NEPA procedures clearance is not required under the longer defines it. The term previously are set forth at 40 CFR 1505.1 and Paperwork Reduction Act (44 U.S.C. referred to ‘‘a single, stand-alone effort 1507.3. The determination that 3501 et seq.). within a program mission area that is a establishing categorical exclusions does Review Under Unfunded Mandates primary means to advance the not require NEPA analysis and Reform Act of 1995 Department’s strategic goals.’’ documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, The Unfunded Mandates Reform Act D7 Contracts, Policies, and Marketing 73 F. Supp. 2d 962, 972–73 (S.D. Ill. of 1995 (Pub. L. 104–4) generally and Allocation Plans for Electric Power 1999), aff’d, 230 F.3d 947, 954–55 (7th requires Federal agencies to examine After further consideration, DOE will Cir. 2000). closely the impacts of regulatory actions not explicitly refer to transmission in on state, local, and tribal governments. this class of actions; transmission Review Under Regulatory Flexibility Act Subsection 101(5) of title I of that law activities are included in the contracts, The Regulatory Flexibility Act (5 defines a Federal intergovernmental policies, and marketing plans, or are U.S.C. 601 et seq.) requires preparation mandate to include any regulation that
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would impose upon state, local, or tribal supporting any action that would limit OMB’s guidelines were published at governments an enforceable duty, the policymaking discretion of the states 67 FR 8452 (February 22, 2002), and except a condition of Federal assistance and carefully assess the necessity for DOE’s guidelines were published at 67 or a duty arising from participating in a such actions. DOE has examined this FR 62446 (October 7, 2002). DOE has voluntary Federal program. Title II of rule and has determined that it would reviewed this rule under the OMB and that law requires each Federal agency to not preempt state law and would not DOE guidelines and has concluded that assess the effects of Federal regulatory have a substantial direct effect on the it is consistent with applicable policies actions on state, local, and tribal states, on the relationship between the in those guidelines. governments, in the aggregate, or to the national government and the states, or private sector, other than to the extent on the distribution of power and Review Under Executive Order 13211 such actions merely incorporate responsibilities among the various Executive Order 13211, ‘‘Actions requirements specifically set forth in a levels of government. No further action Concerning Regulations That statute. Section 202 of that title requires is required by Executive Order 13132. Significantly Affect Energy Supply, a Federal agency to perform a detailed Review Under Executive Order 12988 Distribution, or Use’’ (66 FR 28355; May assessment of the anticipated costs and 22, 2001), requires Federal agencies to benefits of any rule that includes a With respect to the review of existing prepare and submit to OMB a Statement Federal mandate which may result in regulations and the promulgation of of Energy Effects for any proposed costs to state, local, or tribal new regulations, section 3(a) of significant energy action. A ‘‘significant governments, or to the private sector, of Executive Order 12988, ‘‘Civil Justice energy action’’ is defined as any action $100 million or more in any one year Reform’’ (61 FR 4729; February 7, 1996), by an agency that promulgated or is (adjusted annually for inflation). Section imposes on Executive agencies the expected to lead to promulgation of a 204 of that title requires each agency general duty to adhere to the following final rule, and that: (1)(i) Is a significant that proposes a rule containing a requirements: (1) Eliminate drafting regulatory action under Executive Order significant Federal intergovernmental errors and ambiguity; (2) write 12866, or any successor order, and (ii) mandate to develop an effective process regulations to minimize litigation; and is likely to have a significant adverse for obtaining meaningful and timely (3) provide a clear legal standard for effect on the supply, distribution, or use input from elected officers of state, affected conduct rather than a general local, and tribal governments. of energy; or (2) is designated by the standard and promote simplification Administrator of the Office of This rule would amend DOE’s and burden reduction. With regard to existing regulations governing Information and Regulatory Affairs as a the review required by section 3(a), compliance with NEPA to better align significant energy action. For any section 3(b) of Executive Order 12988 DOE’s regulations, particularly its proposed significant energy action, the specifically requires that Executive categorical exclusions, with its current agency must give a detailed statement of agencies make every reasonable effort to activities and recent experiences, and any adverse effects on energy supply, ensure that the regulation: (1) Clearly update the provisions with respect to distribution, or use should the proposal specifies the preemptive effect, if any; current technologies and regulatory be implemented, and of reasonable (2) clearly specifies any effect on requirements. This rule would not result alternatives to the action and their existing Federal law or regulation; (3) in the expenditure by state, local, and expected benefits for energy supply, provides a clear legal standard for tribal governments in the aggregate, or distribution, and use. This rule would affected conduct while promoting by the private sector, of $100 million or not have a significant adverse effect on simplification and burden reduction; (4) more in any one year. Accordingly, no the supply, distribution, or use of specifies the retroactive effect, if any; (5) assessment or analysis is required under energy, and is therefore not a significant adequately defines key terms; and (6) the Unfunded Mandates Reform Act of energy action. Accordingly, DOE has not addresses other important issues 1995. prepared a Statement of Energy Effects. affecting clarity and general Review Under Treasury and General draftsmanship under any guidelines Review Under Executive Order 12630 Government Appropriations Act, 1999 issued by the Attorney General. Section DOE has determined pursuant to 3(c) of Executive Order 12988 requires Section 654 of the Treasury and Executive Order 12630, ‘‘Governmental Executive agencies to review regulations General Government Appropriations Actions and Interference with in light of applicable standards in Act, 1999 (Pub. L. 105–277) requires Constitutionally Protected Property section 3(a) and section 3(b) to Federal agencies to issue a Family Rights’’ (53 FR 8859; March 18, 1988), determine whether they are met or if it Policymaking Assessment for any that this rule would not result in any is unreasonable to meet one or more of proposed rule that may affect family takings which might require them. DOE has completed the required well being. This rule would not have compensation under the Fifth review and determined that, to the any impact on the autonomy or integrity Amendment to the United States extent permitted by law, the rule meets of the family as an institution. Constitution. Accordingly, DOE has concluded that it the relevant standards of Executive is not necessary to prepare a Family Order 12988. Congressional Notification Policymaking Assessment. Review Under Treasury and General As required by 5 U.S.C. 801, DOE will Review Under Executive Order 13132 Government Appropriations Act, 2001 report to Congress on the promulgation Executive Order 13132, ‘‘Federalism’’ The Treasury and General of this rule prior to its effective date. (64 FR 43255; August 4, 1999), imposes Government Appropriations Act, 2001 The report will state that it has been certain requirements on agencies (44 U.S.C. 3516 note) provides for determined that the rule is not a ‘‘major formulating and implementing policies agencies to review most disseminations rule’’ as defined by 5 U.S.C. 804(2). or regulations that preempt state law or of information to the public under Approval of the Office of the Secretary that have federalism implications. guidelines established by each agency Agencies are required to examine the pursuant to general guidelines issued by The Secretary of Energy has approved constitutional and statutory authority OMB. publication of today’s final rule.
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List of Subjects in 10 CFR Part 1021 ■ 6. Subpart D of part 1021 is revised to individually or cumulatively have a Environmental impact statements. read as follows: significant effect on the human Subpart D—Typical Classes of Actions environment (categorical exclusions). Issued in Washington, DC, September 27, (b) To find that a proposal is 2011. Sec. categorically excluded, DOE shall Sean A. Lev, 1021.400 Level of NEPA review. determine the following: Acting General Counsel. 1021.410 Application of categorical (1) The proposal fits within a class of exclusions (classes of actions that For the reasons stated in the normally do not require EAs or EISs). actions that is listed in appendix A or Preamble, DOE amends part 1021 of Appendix A to Subpart D of Part 1021— B to this subpart D; chapter X of title 10 of the Code of Categorical Exclusions Applicable to (2) There are no extraordinary Federal Regulations as set forth below: General Agency Actions circumstances related to the proposal Appendix B to Subpart D of Part 1021— that may affect the significance of the PART 1021—NATIONAL Categorical Exclusions Applicable to environmental effects of the proposal. ENVIRONMENTAL POLICY ACT Specific Agency Actions Extraordinary circumstances are unique IMPLEMENTING PROCEDURES Appendix C to Subpart D of Part 1021— situations presented by specific Classes of Actions That Normally proposals, including, but not limited to, ■ 1. The authority citation for part 1021 Require EAs But Not Necessarily EISs scientific controversy about the Appendix D to Subpart D of Part 1021— environmental effects of the proposal; continues to read as follows: Classes of Actions That Normally Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. Require EISs uncertain effects or effects involving 4321 et seq.; 50 U.S.C. 2401 et seq. unique or unknown risks; and unresolved conflicts concerning ■ 2. Section 1021.215 is amended by Subpart D—Typical Classes of Actions alternative uses of available resources; revising the fourth sentence in § 1021.400 Level of NEPA review. and paragraph (d) to read as follows: (a) This subpart identifies DOE (3) The proposal has not been § 1021.215 Applicant process. actions that normally: segmented to meet the definition of a * * * * * (1) Do not require preparation of categorical exclusion. Segmentation can (d) * * * The contractor shall provide either an EIS or an EA (are categorically occur when a proposal is broken down into small parts in order to avoid the a disclosure statement in accordance excluded from preparation of either appearance of significance of the total with 40 CFR 1506.5(c). * * * document) (appendices A and B to this subpart D); action. The scope of a proposal must ■ 3. Section 1021.311 is amended by (2) Require preparation of an EA, but include the consideration of connected revising the first sentence in paragraph not necessarily an EIS (appendix C to and cumulative actions, that is, the (d) and paragraph (f) to read as follows: this subpart D); or proposal is not connected to other § 1021.311 Notice of intent and scoping. (3) Require preparation of an EIS actions with potentially significant impacts (40 CFR 1508.25(a)(1)), is not * * * * * (appendix D to this subpart D). related to other actions with (d) DOE shall hold at least one public (b) Any completed, valid NEPA individually insignificant but scoping meeting as part of the public review does not have to be repeated, cumulatively significant impacts (40 scoping process for a DOE EIS. * * * and no completed NEPA documents need to be redone by reasons of these CFR 1508.27(b)(7)), and is not precluded * * * * * regulations, except as provided in by 40 CFR 1506.1 or § 1021.211 of this (f) A public scoping process is § 1021.314. part concerning limitations on actions optional for DOE supplemental EISs (40 (c) If a DOE proposal is encompassed during EIS preparation. CFR 1502.9(c)(4)). If DOE initiates a within a class of actions listed in the (c) All categorical exclusions may be public scoping process for a appendices to this subpart D, DOE shall applied by any organizational element supplemental EIS, the provisions of proceed with the level of NEPA review of DOE. The sectional divisions in paragraphs (a) through (e) of this section indicated for that class of actions, unless appendix B to this subpart D are solely shall apply. there are extraordinary circumstances for purposes of organization of that ■ 4. Section 1021.322 is amended by related to the specific proposal that may appendix and are not intended to be revising the last sentence of paragraph affect the significance of the limiting. (f) to read as follows: environmental effects of the proposal. (d) A class of actions includes (d) If a DOE proposal is not activities foreseeably necessary to § 1021.322 Findings of no significant proposals encompassed within the class impact. encompassed within the classes of of actions (such as award of * * * * * actions listed in the appendices to this subpart D, or if there are extraordinary implementing grants and contracts, site (f) * * * A revised FONSI is subject preparation, purchase and installation to all provisions of this section. circumstances related to the proposal that may affect the significance of the of equipment, and associated ■ 5. Section 1021.331 is amended by environmental effects of the proposal, transportation activities). revising the first sentence in paragraph DOE shall either: (e) Categorical exclusion (b) to read as follows: (1) Prepare an EA and, on the basis of determinations for actions listed in that EA, determine whether to prepare appendix B shall be documented and § 1021.331 Mitigation action plans. made available to the public by posting * * * * * an EIS or a FONSI; or (2) Prepare an EIS and ROD. online, generally within two weeks of (b) In certain circumstances, as the determination, unless additional specified in § 1021.322(b)(1), DOE shall § 1021.410 Application of categorical time is needed in order to review and also prepare a Mitigation Action Plan exclusions (classes of actions that normally protect classified information, for commitments to mitigations that are do not require EAs or EISs). ‘‘confidential business information,’’ or essential to render the impacts of the (a) The actions listed in appendices A other information that DOE would not proposed action not significant. * * * and B to this subpart D are classes of disclose pursuant to the Freedom of * * * * * actions that DOE has determined do not Information Act (FOIA) (5 U.S.C. 552).
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Posted categorical exclusion A10 Reports and recommendations on non- programs), but not including site determinations shall not disclose DOE legislation characterization or environmental classified information, ‘‘confidential A11 Technical advice and assistance to monitoring. (See also B3.1 of appendix B to organizations this subpart.) business information,’’ or other A12 Emergency preparedness planning information that DOE would not A13 Procedural documents A10 Reports and recommendations on non- disclose pursuant to FOIA. (See also 10 A14 Approval of technical exchange DOE legislation CFR 1021.340.) arrangements Reports and recommendations on (f) Proposed recurring activities to be A15 International agreements for energy legislation or rulemaking that are not undertaken during a specified time research and development proposed by DOE. period, such as routine maintenance A1 Routine DOE business actions A11 Technical advice and assistance to activities for a year, may be addressed Routine actions necessary to support the organizations in a single categorical exclusion normal conduct of DOE business limited to Technical advice and planning assistance determination after considering the administrative, financial, and personnel to international, national, state, and local potential aggregated impacts. actions. organizations. (g) The following clarifications are provided to assist in the appropriate A2 Clarifying or administrative contract A12 Emergency preparedness planning actions application of categorical exclusions Emergency preparedness planning that employ the terms or phrases: Contract interpretations, amendments, and activities, including, but not limited to, the (1) ‘‘Previously disturbed or modifications that are clarifying or designation of onsite evacuation routes. administrative in nature. developed’’ refers to land that has been A13 Procedural documents changed such that its functioning A3 Certain actions by Office of Hearings Administrative, organizational, or ecological processes have been and and Appeals procedural Policies, Orders, Notices, remain altered by human activity. The Adjustments, exceptions, exemptions, Manuals, and Guides. phrase encompasses areas that have appeals and stays, modifications, or rescissions of orders issued by the Office of A14 Approval of technical exchange been transformed from natural cover to arrangements non-native species or a managed state, Hearings and Appeals. Approval of technical exchange including, but not limited to, utility and A4 Interpretations and rulings for existing arrangements for information, data, or electric power transmission corridors regulations personnel with other countries or and rights-of-way, and other areas Interpretations and rulings with respect to international organizations (including, but where active utilities and currently used existing regulations, or modifications or not limited to, assistance in identifying and roads are readily available. rescissions of such interpretations and analyzing another country’s energy resources, (2) DOE considers terms such as rulings. needs and options). ‘‘small’’ and ‘‘small-scale’’ in the A5 Interpretive rulemakings with no A15 International agreements for energy context of the particular proposal, change in environmental effect research and development including its proposed location. In Rulemakings interpreting or amending an Approval of DOE participation in assessing whether a proposed action is existing rule or regulation that does not international ‘‘umbrella’’ agreements for small, in addition to the actual change the environmental effect of the rule cooperation in energy research and magnitude of the proposal, DOE or regulation being amended. development activities that would not considers factors such as industry A6 Procedural rulemakings commit the U.S. to any specific projects or norms, the relationship of the proposed activities. action to similar types of development Rulemakings that are strictly procedural, including, but not limited to, rulemaking Appendix B to Subpart D of Part 1021— in the vicinity of the proposed action, (under 48 CFR chapter 9) establishing Categorical Exclusions Applicable to and expected outputs of emissions or procedures for technical and pricing Specific Agency Actions waste. When considering the physical proposals and establishing contract clauses size of a proposed facility, for example, and contracting practices for the purchase of Table of Contents DOE would review the surrounding goods and services, and rulemaking (under B. Conditions that Are Integral Elements of land uses, the scale of the proposed 10 CFR part 600) establishing application and the Classes of Actions in Appendix B review procedures for, and administration, facility relative to existing development, B1. Categorical Exclusions Applicable to and the capacity of existing roads and audit, and closeout of, grants and cooperative agreements. Facility Operation other infrastructure to support the proposed action. A7 [Reserved] B1.1 Changing rates and prices B1.2 Training exercises and simulations Appendix A to Subpart D of Part A8 Awards of certain contracts B1.3 Routine maintenance 1021—Categorical Exclusions Awards of contracts for technical support B1.4 Air conditioning systems for existing Applicable to General Agency Actions services, management and operation of a equipment government-owned facility, and personal B1.5 Existing steam plants and cooling Table of Contents services. water systems A1 Routine DOE business actions B1.6 Tanks and equipment to control runoff A9 Information gathering, analysis, and A2 Clarifying or administrative contract and spills actions dissemination B1.7 Electronic equipment A3 Certain actions by Office of Hearings Information gathering (including, but not B1.8 Screened water intake and outflow and Appeals limited to, literature surveys, inventories, site structures A4 Interpretations and rulings for existing visits, and audits), data analysis (including, B1.9 Airway safety markings and painting regulations but not limited to, computer modeling), B1.10 Onsite storage of activated material A5 Interpretive rulemakings with no change document preparation (including, but not B1.11 Fencing in environmental effect limited to, conceptual design, feasibility B1.12 Detonation or burning of explosives A6 Procedural rulemakings studies, and analytical energy supply and or propellants after testing A7 [Reserved] demand studies), and information B1.13 Pathways, short access roads, and rail A8 Awards of certain contracts dissemination (including, but not limited to, lines A9 Information gathering, analysis, and document publication and distribution, and B1.14 Refueling of nuclear reactors dissemination classroom training and informational B1.15 Support buildings
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B1.16 Asbestos removal B4. Categorical Exclusions Applicable to B6.5 Facilities for characterizing and B1.17 Polychlorinated biphenyl removal Electric Power and Transmission sorting packaged waste and overpacking B1.18 Water supply wells B4.1 Contracts, policies, and marketing and waste B1.19 Microwave, meteorological, and radio allocation plans for electric power B6.6 Modification of facilities for storing, towers B4.2 Export of electric energy packaging, and repacking waste B1.20 Protection of cultural resources, fish B4.3 Electric power marketing rate changes B6.7 [Reserved] and wildlife habitat B4.4 Power marketing services and B6.8 Modifications for waste minimization B1.21 Noise abatement activities and reuse of materials B1.22 Relocation of buildings B4.5 Temporary adjustments to river B6.9 Measures to reduce migration of B1.23 Demolition and disposal of buildings operations contaminated groundwater B1.24 Property transfers B4.6 Additions and modifications to B6.10 Upgraded or replacement waste B1.25 Real property transfers for cultural transmission facilities storage facilities resources protection, habitat B4.7 Fiber optic cable B7. Categorical Exclusions Applicable to preservation, and wildlife management B4.8 Electricity transmission agreements International Activities B4.9 Multiple use of powerline rights-of- B1.26 Small water treatment facilities B7.1 Emergency measures under the B1.27 Disconnection of utilities way B4.10 Removal of electric transmission International Energy Program B1.28 Placing a facility in an B7.2 Import and export of special nuclear or environmentally safe condition facilities B4.11 Electric power substations and isotopic materials B1.29 Disposal facilities for construction interconnection facilities and demolition waste B. Conditions That Are Integral Elements of B4.12 Construction of powerlines B1.30 Transfer actions the Classes of Actions in Appendix B B4.13 Upgrading and rebuilding existing B1.31 Installation or relocation of powerlines The classes of actions listed below include machinery and equipment the following conditions as integral elements B1.32 Traffic flow adjustments B5. Categorical Exclusions Applicable to of the classes of actions. To fit within the B1.33 Stormwater runoff control Conservation, Fossil, and Renewable Energy classes of actions listed below, a proposal B1.34 Lead-based paint containment, Activities must be one that would not: removal, and disposal B5.1 Actions to conserve energy or water (1) Threaten a violation of applicable B1.35 Drop-off, collection, and transfer B5.2 Modifications to pumps and piping statutory, regulatory, or permit requirements facilities for recyclable materials B5.3 Modification or abandonment of wells for environment, safety, and health, or B1.36 Determinations of excess real B5.4 Repair or replacement of pipelines similar requirements of DOE or Executive property B5.5 Short pipeline segments Orders; B5.6 Oil spill cleanup (2) Require siting and construction or B2. Categorical Exclusions Applicable to B5.7 Import or export natural gas, with major expansion of waste storage, disposal, Safety and Health operational changes recovery, or treatment facilities (including B2.1 Workplace enhancements B5.8 Import or export natural gas, with new incinerators), but the proposal may include B2.2 Building and equipment cogeneration powerplant categorically excluded waste storage, instrumentation B5.9 Temporary exemptions for electric disposal, recovery, or treatment actions or B2.3 Personnel safety and health equipment powerplants facilities; B2.4 Equipment qualification B5.10 Certain permanent exemptions for (3) Disturb hazardous substances, B2.5 Facility safety and environmental existing electric powerplants pollutants, contaminants, or CERCLA- improvements B5.11 Permanent exemptions allowing excluded petroleum and natural gas products B2.6 Recovery of radioactive sealed sources mixed natural gas and petroleum that preexist in the environment such that B5.12 Workover of existing wells there would be uncontrolled or unpermitted B3. Categorical Exclusions Applicable to Site B5.13 Experimental wells for injection of releases; Characterization, Monitoring, and General small quantities of carbon dioxide (4) Have the potential to cause significant Research B5.14 Combined heat and power or impacts on environmentally sensitive B3.1 Site characterization and cogeneration systems resources. An environmentally sensitive environmental monitoring B5.15 Small-scale renewable energy resource is typically a resource that has been identified as needing protection through B3.2 Aviation activities research and development and pilot Executive Order, statute, or regulation by B3.3 Research related to conservation of projects Federal, state, or local government, or a fish, wildlife, and cultural resources B5.16 Solar photovoltaic systems Federally recognized Indian tribe. An action B3.4 Transport packaging tests for B5.17 Solar thermal systems may be categorically excluded if, although radioactive or hazardous material B5.18 Wind turbines B5.19 Ground source heat pumps sensitive resources are present, the action B3.5 Tank car tests B5.20 Biomass power plants would not have the potential to cause B3.6 Small-scale research and development, B5.21 Methane gas recovery and utilization significant impacts on those resources (such laboratory operations, and pilot projects systems as construction of a building with its B3.7 New terrestrial infill exploratory and B5.22 Alternative fuel vehicle fueling foundation well above a sole-source aquifer experimental wells stations or upland surface soil removal on a site that B3.8 Outdoor terrestrial ecological and B5.23 Electric vehicle charging stations has wetlands). Environmentally sensitive environmental research B5.24 Drop-in hydroelectric systems resources include, but are not limited to: B3.9 Projects to reduce emissions and waste B5.25 Small-scale renewable energy (i) Property (such as sites, buildings, generation research and development and pilot structures, and objects) of historic, B3.10 Particle accelerators projects in aquatic environments archeological, or architectural significance B3.11 Outdoor tests and experiments on designated by a Federal, state, or local materials and equipment components B6. Categorical Exclusions Applicable to government, Federally recognized Indian B3.12 Microbiological and biomedical Environmental Restoration and Waste tribe, or Native Hawaiian organization, or facilities Management Activities property determined to be eligible for listing B3.13 Magnetic fusion experiments B6.1 Cleanup actions on the National Register of Historic Places; B3.14 Small-scale educational facilities B6.2 Waste collection, treatment, (ii) Federally-listed threatened or B3.15 Small-scale indoor research and stabilization, and containment facilities endangered species or their habitat development projects using nanoscale B6.3 Improvements to environmental (including critical habitat) or Federally- materials control systems proposed or candidate species or their habitat B3.16 Research activities in aquatic B6.4 Facilities for storing packaged (Endangered Species Act); state-listed or environments hazardous waste for 90 days or less state-proposed endangered or threatened
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species or their habitat; Federally-protected which operations may be suspended and monitoring wells, lysimeters, weather marine mammals and Essential Fish Habitat resumed, provided that the activities would stations, and flumes); (Marine Mammal Protection Act; Magnuson- be conducted in a manner in accordance with (o) Routine decontamination of the Stevens Fishery Conservation and applicable requirements. Custodial services surfaces of equipment, rooms, hot cells, or Management Act); and otherwise Federally- are activities to preserve facility appearance, other interior surfaces of buildings (by such protected species (such as the Bald and working conditions, and sanitation (such as activities as wiping with rags, using Golden Eagle Protection Act or the Migratory cleaning, window washing, lawn mowing, strippable latex, and minor vacuuming), and Bird Treaty Act); trash collection, painting, and snow removal of contaminated intact equipment (iii) Floodplains and wetlands (as defined removal). Routine maintenance activities, and other material (not including spent in 10 CFR 1022.4, ‘‘Compliance with corrective (that is, repair), preventive, and nuclear fuel or special nuclear material in Floodplain and Wetland Environmental predictive, are required to maintain and nuclear reactors); and Review Requirements: Definitions,’’ or its preserve buildings, structures, (p) Removal of debris. successor); infrastructures, and equipment in a condition B1.4 Air conditioning systems for existing (iv) Areas having a special designation suitable for a facility to be used for its equipment such as Federally- and state-designated designated purpose. Such maintenance may wilderness areas, national parks, national occur as a result of severe weather (such as Installation or modification of air monuments, national natural landmarks, hurricanes, floods, and tornados), wildfires, conditioning systems required for wild and scenic rivers, state and Federal and other such events. Routine maintenance temperature control for operation of existing wildlife refuges, scenic areas (such as may result in replacement to the extent that equipment. replacement is in-kind and is not a National Scenic and Historic Trails or B1.5 Existing steam plants and cooling National Scenic Areas), and marine substantial upgrade or improvement. In-kind water systems sanctuaries; replacement includes installation of new (v) Prime or unique farmland, or other components to replace outmoded Minor improvements to existing steam farmland of statewide or local importance, as components, provided that the replacement plants and cooling water systems (including, defined at 7 CFR 658.2(a), ‘‘Farmland does not result in a significant change in the but not limited to, modifications of existing Protection Policy Act: Definitions,’’ or its expected useful life, design capacity, or cooling towers and ponds), provided that the successor; function of the facility. Routine maintenance improvements would not: (1) Create new (vi) Special sources of water (such as sole- does not include replacement of a major sources of water or involve new receiving source aquifers, wellhead protection areas, component that significantly extends the waters; (2) have the potential to significantly and other water sources that are vital in a originally intended useful life of a facility alter water withdrawal rates; (3) exceed the region); and (for example, it does not include the permitted temperature of discharged water; (vii) Tundra, coral reefs, or rain forests; or replacement of a reactor vessel near the end or (4) increase introductions of, or involve (5) Involve genetically engineered of its useful life). Routine maintenance new introductions of, hazardous substances, organisms, synthetic biology, governmentally activities include, but are not limited to: pollutants, contaminants, or CERCLA- designated noxious weeds, or invasive (a) Repair or replacement of facility excluded petroleum and natural gas species, unless the proposed activity would equipment, such as lathes, mills, pumps, and products. be contained or confined in a manner presses; B1.6 Tanks and equipment to control runoff designed and operated to prevent (b) Door and window repair or and spills unauthorized release into the environment replacement; Installation or modification of retention and conducted in accordance with applicable (c) Wall, ceiling, or floor repair or tanks or small (normally under one acre) requirements, such as those of the replacement; basins and associated piping and pumps for Department of Agriculture, the (d) Reroofing; existing operations to control runoff or spills Environmental Protection Agency, and the (e) Plumbing, electrical utility, lighting, (such as under 40 CFR part 112). National Institutes of Health. and telephone service repair or replacement; Modifications include, but are not limited to, B1. Categorical Exclusions Applicable to (f) Routine replacement of high-efficiency installing liners or covers. (See also B1.33 of Facility Operation particulate air filters; this appendix.) (g) Inspection and/or treatment of currently B1.1 Changing rates and prices installed utility poles; B1.7 Electronic equipment Changing rates for services or prices for (h) Repair of road embankments; Acquisition, installation, operation, products marketed by parts of DOE other (i) Repair or replacement of fire protection modification, and removal of electricity than Power Marketing Administrations, and sprinkler systems; transmission control and monitoring devices approval of rate or price changes for non- (j) Road and parking area resurfacing, for grid demand and response, DOE entities, that are consistent with the including construction of temporary access to communication systems, data processing change in the implicit price deflator for the facilitate resurfacing, and scraping and equipment, and similar electronic Gross Domestic Product published by the grading of unpaved surfaces; equipment. Department of Commerce, during the period (k) Erosion control and soil stabilization since the last rate or price change. measures (such as reseeding, gabions, B1.8 Screened water intake and outflow grading, and revegetation); structures B1.2 Training exercises and simulations (l) Surveillance and maintenance of Modifications to screened water intake and Training exercises and simulations surplus facilities in accordance with DOE outflow structures such that intake velocities (including, but not limited to, firing-range Order 435.1, ‘‘Radioactive Waste and volumes and water effluent quality and training, small-scale and short-duration Management,’’ or its successor; volumes are consistent with existing permit force-on-force exercises, emergency response (m) Repair and maintenance of limits. training, fire fighter and rescue training, and transmission facilities, such as replacement decontamination and spill cleanup training) of conductors of the same nominal voltage, B1.9 Airway safety markings and painting conducted under appropriately controlled poles, circuit breakers, transformers, Placement of airway safety markings on, conditions and in accordance with applicable capacitors, crossarms, insulators, and painting of, and repair and in-kind requirements. downed powerlines, in accordance, where replacement of lighting on powerlines and appropriate, with 40 CFR part 761 antenna structures, wind turbines, and B1.3 Routine maintenance (Polychlorinated Biphenyls Manufacturing, similar structures in accordance with Routine maintenance activities and Processing, Distribution in Commerce, and applicable requirements (such as Federal custodial services for buildings, structures, Use Prohibitions) or its successor; Aviation Administration standards). rights-of-way, infrastructures (including, but (n) Routine testing and calibration of not limited to, pathways, roads, and facility components, subsystems, or portable B1.10 Onsite storage of activated material railroads), vehicles and equipment, and equipment (such as control valves, in-core Routine, onsite storage at an existing localized vegetation and pest control, during monitoring devices, transformers, capacitors, facility of activated equipment and material
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(including, but not limited to, lead) used at Construction’’; and appropriate state and B1.24 Property transfers that facility, to allow reuse after decay of local requirements, including certification of Transfer, lease, disposition, or acquisition radioisotopes with short half-lives. removal contractors and technicians). of interests in personal property (including, B1.11 Fencing B1.17 Polychlorinated biphenyl removal but not limited to, equipment and materials) or real property (including, but not limited Installation of fencing, including, but not Removal of polychlorinated biphenyl to, permanent structures and land), provided limited to border marking, that would not (PCB)-containing items (including, but not that under reasonably foreseeable uses (1) have the potential to significantly impede limited to, transformers and capacitors), PCB- there would be no potential for release of wildlife population movement (including containing oils flushed from transformers, substances at a level, or in a form, that could migration) or surface water flow. PCB-flushing solutions, and PCB-containing pose a threat to public health or the B1.12 Detonation or burning of explosives spill materials from buildings or other environment and (2) the covered actions or propellants after testing aboveground locations in accordance with would not have the potential to cause a Outdoor detonation or burning of applicable requirements (such as 40 CFR part significant change in impacts from before the explosives or propellants that failed (duds), 761). transfer, lease, disposition, or acquisition of interests. were damaged (such as by fracturing), or B1.18 Water supply wells were otherwise not consumed in testing. B1.25 Real property transfers for cultural Outdoor detonation or burning would be in Siting, construction, and operation of additional water supply wells (or resources protection, habitat preservation, areas designated and routinely used for those and wildlife management purposes under existing applicable permits replacement wells) within an existing well issued by Federal, state, and local authorities field, or modification of an existing water Transfer, lease, disposition, or acquisition (such as a permit for a RCRA miscellaneous supply well to restore production, provided of interests in land and associated buildings unit (40 CFR part 264, subpart X)). that there would be no drawdown other than for cultural resources protection, habitat in the immediate vicinity of the pumping preservation, or fish and wildlife B1.13 Pathways, short access roads, and well, and the covered actions would not have management, provided that there would be rail lines the potential to cause significant long-term no potential for release of substances at a Construction, acquisition, and relocation, decline of the water table, and would not level, or in a form, that could pose a threat consistent with applicable right-of-way have the potential to cause significant to public health or the environment. conditions and approved land use or degradation of the aquifer from the new or B1.26 Small water treatment facilities transportation improvement plans, of replacement well. pedestrian walkways and trails, bicycle Siting, construction, expansion, paths, small outdoor fitness areas, and short B1.19 Microwave, meteorological, and radio modification, replacement, operation, and access roads and rail lines (such as branch towers decommissioning of small (total capacity less and spur lines). Siting, construction, modification, than approximately 250,000 gallons per day) operation, and removal of microwave, radio wastewater and surface water treatment B1.14 Refueling of nuclear reactors communication, and meteorological towers facilities whose liquid discharges are Refueling of operating nuclear reactors, and associated facilities, provided that the externally regulated, and small potable water during which operations may be suspended towers and associated facilities would not be and sewage treatment facilities. and then resumed. in a governmentally designated scenic area B1.27 Disconnection of utilities (see B(4)(iv) of this appendix) unless B1.15 Support buildings Activities that are required for the otherwise authorized by the appropriate Siting, construction or modification, and disconnection of utility services (including, governmental entity. operation of support buildings and support but not limited to, water, steam, structures (including, but not limited to, B1.20 Protection of cultural resources, fish telecommunications, and electrical power) trailers and prefabricated and modular and wildlife habitat after it has been determined that the buildings) within or contiguous to an already continued operation of these systems is not Small-scale activities undertaken to protect developed area (where active utilities and needed for safety. cultural resources (such as fencing, labeling, currently used roads are readily accessible). Covered support buildings and structures and flagging) or to protect, restore, or B1.28 Placing a facility in an include, but are not limited to, those for improve fish and wildlife habitat, fish environmentally safe condition office purposes; parking; cafeteria services; passage facilities (such as fish ladders and Minor activities that are required to place education and training; visitor reception; minor diversion channels), or fisheries. Such a facility in an environmentally safe computer and data processing services; activities would be conducted in accordance condition where there is no proposed use for health services or recreation activities; with an existing natural or cultural resource the facility. These activities would include, routine maintenance activities; storage of plan, if any. but are not limited to, reducing surface supplies and equipment for administrative B1.21 Noise abatement contamination, and removing materials, services and routine maintenance activities; equipment or waste (such as final defueling security (such as security posts); fire Noise abatement measures (including, but of a reactor, where there are adequate protection; small-scale fabrication (such as not limited to, construction of noise barriers existing facilities for the treatment, storage, machine shop activities), assembly, and and installation of noise control materials). or disposal of the materials, equipment or testing of non-nuclear equipment or B1.22 Relocation of buildings waste). These activities would not include components; and similar support purposes, conditioning, treatment, or processing of but exclude facilities for nuclear weapons Relocation of buildings (including, but not spent nuclear fuel, high-level waste, or activities and waste storage activities, such as limited to, trailers and prefabricated special nuclear materials. activities covered in B1.10, B1.29, B1.35, buildings) to an already developed area B2.6, B6.2, B6.4, B6.5, B6.6, and B6.10 of this (where active utilities and currently used B1.29 Disposal facilities for construction appendix. roads are readily accessible). and demolition waste Siting, construction, expansion, B1.23 Demolition and disposal of buildings B1.16 Asbestos removal modification, operation, and Removal of asbestos-containing materials Demolition and subsequent disposal of decommissioning of small (less than from buildings in accordance with applicable buildings, equipment, and support structures approximately 10 acres) solid waste disposal requirements (such as 40 CFR part 61, (including, but not limited to, smoke stacks facilities for construction and demolition ‘‘National Emission Standards for Hazardous and parking lot surfaces), provided that there waste, in accordance with applicable Air Pollutants’’; 40 CFR part 763, ‘‘Asbestos’’; would be no potential for release of requirements (such as 40 CFR part 257, 29 CFR part 1910, subpart I, ‘‘Personal substances at a level, or in a form, that could ‘‘Criteria for Classification of Solid Waste Protective Equipment’’; and 29 CFR part pose a threat to public health or the Disposal Facilities and Practices,’’ and 40 1926, ‘‘Safety and Health Regulations for environment. CFR part 61, ‘‘National Emission Standards
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for Hazardous Air Pollutants’’) that would material drop-off, collection, and transfer recertification testing, high efficiency not release substances at a level, or in a form, stations on or contiguous to a previously particulate air filter testing and certification, that could pose a threat to public health or disturbed or developed area and in an area stress tests (such as ‘‘burn-in’’ testing of the environment. where such a facility would be consistent electrical components and leak testing), and with existing zoning requirements. The calibration of sensors or diagnostic B1.30 Transfer actions stations would have appropriate facilities equipment. Transfer actions, in which the predominant and procedures established in accordance B2.5 Facility safety and environmental activity is transportation, provided that (1) with applicable requirements for the improvements the receipt and storage capacity and handling of recyclable or compostable management capability for the amount and materials and household hazardous waste Safety and environmental improvements of type of materials, equipment, or waste to be (such as paint and pesticides). Except as a facility (including, but not limited to, moved already exists at the receiving site and specified above, the collection of hazardous replacement and upgrade of facility (2) all necessary facilities and operations at waste for disposal and the processing of components) that do not result in a the receiving site are already permitted, recyclable or compostable materials are not significant change in the expected useful life, licensed, or approved, as appropriate. Such included in this class of actions. design capacity, or function of the facility transfers are not regularly scheduled as part and during which operations may be of ongoing routine operations. B1.36 Determinations of excess real suspended and then resumed. Improvements property include, but are not limited to, replacement/ B1.31 Installation or relocation of Determinations that real property is excess upgrade of control valves, in-core monitoring machinery and equipment to the needs of DOE and, in the case of devices, facility air filtration systems, or Installation or relocation and operation of acquired real property, the subsequent substation transformers or capacitors; machinery and equipment (including, but not reporting of such determinations to the addition of structural bracing to meet limited to, laboratory equipment, electronic General Services Administration or, in the earthquake standards and/or sustain high hardware, manufacturing machinery, case of lands withdrawn or otherwise wind loading; and replacement of maintenance equipment, and health and reserved from the public domain, the aboveground or belowground tanks and safety equipment), provided that uses of the subsequent filing of a notice of intent to related piping, provided that there is no installed or relocated items are consistent relinquish with the Bureau of Land evidence of leakage, based on testing in with the general missions of the receiving Management, Department of the Interior. accordance with applicable requirements structure. Covered actions include Covered actions would not include disposal (such as 40 CFR part 265, ‘‘Interim Status modifications to an existing building, within of real property. Standards for Owners and Operators of or contiguous to a previously disturbed or Hazardous Waste Treatment, Storage, and developed area, that are necessary for B2. Categorical Exclusions Applicable to Disposal Facilities’’ and 40 CFR part 280, equipment installation and relocation. Such Safety and Health ‘‘Technical Standards and Corrective Action Requirements for Owners and Operators of modifications would not appreciably B2.1 Workplace enhancements increase the footprint or height of the existing Underground Storage Tanks’’). These actions building or have the potential to cause Modifications within or contiguous to an do not include rebuilding or modifying significant changes to the type and existing structure, in a previously disturbed substantial portions of a facility (such as magnitude of environmental impacts. or developed area, to enhance workplace replacing a reactor vessel). habitability (including, but not limited to, B2.6 Recovery of radioactive sealed sources B1.32 Traffic flow adjustments installation or improvements to lighting, Traffic flow adjustments to existing roads radiation shielding, or heating/ventilating/air Recovery of radioactive sealed sources and (including, but not limited to, stop sign or conditioning and its instrumentation, and sealed source-containing devices from traffic light installation, adjusting direction of noise reduction). domestic or foreign locations provided that traffic flow, and adding turning lanes), and (1) the recovered items are transported and B2.2 Building and equipment stored in compliant containers, and (2) the road adjustments (including, but not limited instrumentation to, widening and realignment) that are within receiving site has sufficient existing storage an existing right-of-way and consistent with Installation of, or improvements to, capacity and all required licenses, permits, approved land use or transportation building and equipment instrumentation and approvals. improvement plans. (including, but not limited to, remote control B3. Categorical Exclusions Applicable to Site panels, remote monitoring capability, alarm B1.33 Stormwater runoff control Characterization, Monitoring, and General and surveillance systems, control systems to Research Design, construction, and operation of provide automatic shutdown, fire detection control practices to reduce stormwater runoff and protection systems, water consumption B3.1 Site characterization and and maintain natural hydrology. Activities monitors and flow control systems, environmental monitoring include, but are not limited to, those that announcement and emergency warning Site characterization and environmental reduce impervious surfaces (such as systems, criticality and radiation monitors monitoring (including, but not limited to, vegetative practices and use of porous and alarms, and safeguards and security siting, construction, modification, operation, pavements), best management practices (such equipment). and dismantlement and removal or otherwise as silt fences, straw wattles, and fiber rolls), proper closure (such as of a well) of B2.3 Personnel safety and health equipment and use of green infrastructure or other low characterization and monitoring devices, and impact development practices (such as Installation of, or improvements to, siting, construction, and associated operation cisterns and green roofs). equipment for personnel safety and health of a small-scale laboratory building or (including, but not limited to, eye washes, renovation of a room in an existing building B1.34 Lead-based paint containment, safety showers, radiation monitoring devices, for sample analysis). Such activities would removal, and disposal fumehoods, and associated collection and be designed in conformance with applicable Containment, removal, and disposal of exhaust systems), provided that the covered requirements and use best management lead-based paint in accordance with actions would not have the potential to cause practices to limit the potential effects of any applicable requirements (such as provisions a significant increase in emissions. resultant ground disturbance. Covered relating to the certification of removal activities include, but are not limited to, site B2.4 Equipment qualification contractors and technicians at 40 CFR part characterization and environmental 745, ‘‘Lead-Based Paint Poisoning Prevention Activities undertaken to (1) qualify monitoring under CERCLA and RCRA. (This In Certain Residential Structures’’). equipment for use or improve systems class of actions excludes activities in aquatic reliability or (2) augment information on environments. See B3.16 of this appendix for B1.35 Drop-off, collection, and transfer safety-related system components. These such activities.) Specific activities include, facilities for recyclable materials activities include, but are not limited to, but are not limited to: Siting, construction, modification, and transportation container qualification testing, (a) Geological, geophysical (such as gravity, operation of recycling or compostable crane and lift-gear certification or magnetic, electrical, seismic, radar, and
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temperature gradient), geochemical, and projects (generally less than 2 years) (c) Addition or replacement of equipment engineering surveys and mapping, and the frequently conducted to verify a concept for reduction or control of sulfur dioxide, establishment of survey marks. Seismic before demonstration actions, provided that oxides of nitrogen, or other regulated techniques would not include large-scale construction or modification would be substances that involves no permanent reflection or refraction testing; within or contiguous to a previously change in the quantity or quality of fuel (b) Installation and operation of field disturbed or developed area (where active burned or used and involves no permanent instruments (such as stream-gauging stations utilities and currently used roads are readily change in the capacity factor of the fuel or flow-measuring devices, telemetry accessible). Not included in this category are combustion or utilization facility; and systems, geochemical monitoring tools, and demonstration actions, meaning actions that (d) Addition or modification of equipment geophysical exploration tools); are undertaken at a scale to show whether a for capture and control of carbon dioxide or (c) Drilling of wells for sampling or technology would be viable on a larger scale other regulated substances, provided that monitoring of groundwater or the vadose and suitable for commercial deployment. adequate infrastructure is in place to manage (unsaturated) zone, well logging, and such substances. B3.7 New terrestrial infill exploratory and installation of water-level recording devices B3.10 Particle accelerators in wells; experimental wells (d) Aquifer and underground reservoir Siting, construction, and operation of new Siting, construction, modification, response testing; terrestrial infill exploratory and experimental operation, and decommissioning of particle (e) Installation and operation of ambient air (test) wells, for either extraction or injection accelerators, including electron beam monitoring equipment; use, in a locally characterized geological accelerators, with primary beam energy less (f) Sampling and characterization of water, formation in a field that contains existing than approximately 100 million electron soil, rock, or contaminants (such as drilling operating wells, properly abandoned wells, volts (MeV) and average beam power less using truck- or mobile-scale equipment, and or unminable coal seams containing natural than approximately 250 kilowatts (kW), and associated beamlines, storage rings, colliders, modification, use, and plugging of gas, provided that the site characterization and detectors, for research and medical boreholes); has verified a low potential for seismicity, purposes (such as proton therapy), and (g) Sampling and characterization of water subsidence, and contamination of freshwater isotope production, within or contiguous to effluents, air emissions, or solid waste aquifers, and the actions are otherwise a previously disturbed or developed area streams; consistent with applicable best practices and (where active utilities and currently used (h) Installation and operation of DOE protocols, including those that protect roads are readily accessible), or internal meteorological towers and associated against uncontrolled releases of harmful modification of any accelerator facility activities (such as assessment of potential materials. Such wells may include those for regardless of energy, that does not increase wind energy resources); brine, carbon dioxide, coalbed methane, gas primary beam energy or current. In cases (i) Sampling of flora or fauna; and hydrate, geothermal, natural gas, and oil. (j) Archeological, historic, and cultural where the beam energy exceeds 100 MeV, the Uses for carbon sequestration wells include, average beam power must be less than 250 resource identification in compliance with 36 but are not limited to, the study of saline CFR part 800 and 43 CFR part 7. kW, so as not to exceed an average current formations, enhanced oil recovery, and of 2.5 milliamperes (mA). B3.2 Aviation activities enhanced coalbed methane extraction. B3.11 Outdoor tests and experiments on Aviation activities for survey, monitoring, B3.8 Outdoor terrestrial ecological and materials and equipment components or security purposes that comply with environmental research Federal Aviation Administration regulations. Outdoor tests and experiments for the Outdoor terrestrial ecological and development, quality assurance, or reliability B3.3 Research related to conservation of environmental research in a small area of materials and equipment (including, but fish, wildlife, and cultural resources (generally less than 5 acres), including, but not limited to, weapon system components) not limited to, siting, construction, and Field and laboratory research, inventory, under controlled conditions. Covered actions operation of a small-scale laboratory building and information collection activities that are include, but are not limited to, burn tests directly related to the conservation of fish or renovation of a room in an existing (such as tests of electric cable fire resistance and wildlife resources or to the protection of building for associated analysis. Such or the combustion characteristics of fuels), cultural resources, provided that such activities would be designed in conformance impact tests (such as pneumatic ejector tests activities would not have the potential to with applicable requirements and use best using earthen embankments or concrete slabs cause significant impacts on fish and wildlife management practices to limit the potential designated and routinely used for that habitat or populations or to cultural effects of any resultant ground disturbance. purpose), or drop, puncture, water- resources. B3.9 Projects to reduce emissions and waste immersion, or thermal tests. Covered actions generation would not involve source, special nuclear, or B3.4 Transport packaging tests for byproduct materials, except encapsulated radioactive or hazardous material Projects to reduce emissions and waste sources manufactured to applicable Drop, puncture, water-immersion, thermal, generation at existing fossil or alternative fuel standards that contain source, special and fire tests of transport packaging for combustion or utilization facilities, provided nuclear, or byproduct materials may be used radioactive or hazardous materials to certify that these projects would not have the for nondestructive actions such as detector/ that designs meet the applicable potential to cause a significant increase in the sensor development and testing and first requirements (such as 49 CFR 173.411 and quantity or rate of air emissions. For this responder field training. 173.412 and 10 CFR 71.73). category of actions, ‘‘fuel’’ includes, but is not limited to, coal, oil, natural gas, B3.12 Microbiological and biomedical B3.5 Tank car tests hydrogen, syngas, and biomass; but ‘‘fuel’’ facilities Tank car tests under 49 CFR part 179 does not include nuclear fuel. Covered Siting, construction, modification, (including, but not limited to, tests of safety actions include, but are not limited to: operation, and decommissioning of relief devices, pressure regulators, and (a) Test treatment of the throughput microbiological and biomedical diagnostic, thermal protection systems). product (solid, liquid, or gas) generated at an treatment and research facilities (excluding existing and fully operational fuel Biosafety Level-3 and Biosafety Level-4), in B3.6 Small-scale research and combustion or utilization facility; accordance with applicable requirements and development, laboratory operations, and (b) Addition or replacement of equipment best practices (such as Biosafety in pilot projects for reduction or control of sulfur dioxide, Microbiological and Biomedical Laboratories, Siting, construction, modification, oxides of nitrogen, or other regulated 5th Edition, Dec. 2009, U.S. Department of operation, and decommissioning of facilities substances that requires only minor Health and Human Services) including, but for small-scale research and development modification to the existing structures at an not limited to, laboratories, treatment areas, projects; conventional laboratory operations existing fuel combustion or utilization offices, and storage areas, within or (such as preparation of chemical standards facility, for which the existing use remains contiguous to a previously disturbed or and sample analysis); and small-scale pilot essentially unchanged; developed area (where active utilities and
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currently used roads are readily accessible). listed above would occur within the and wildlife conservation program Operation may include the purchase, boundary of an established marine sanctuary requirements, and other external events, installation, and operation of biomedical or wildlife refuge, a governmentally proposed provided that the adjustments would occur equipment (such as commercially available marine sanctuary or wildlife refuge, or a within the existing operating constraints of cyclotrons that are used to generate governmentally recognized area of high the particular hydrosystem operation. radioisotopes and radiopharmaceuticals, and biological sensitivity, unless authorized by commercially available biomedical imaging the agency responsible for such refuge, B4.6 Additions and modifications to and spectroscopy instrumentation). sanctuary, or area (or after consultation with transmission facilities the responsible agency, if no authorization is B3.13 Magnetic fusion experiments Additions or modifications to electric required). If the proposed activities would power transmission facilities within a Performing magnetic fusion experiments occur outside such refuge, sanctuary, or area previously disturbed or developed facility that do not use tritium as fuel, within and if the activities would have the potential area. Covered activities include, but are not existing facilities (including, but not limited to cause impacts within such refuge, limited to, switchyard rock grounding to, necessary modifications). sanctuary, or area, then the responsible upgrades, secondary containment projects, agency shall be consulted in order to B3.14 Small-scale educational facilities determine whether authorization is required paving projects, seismic upgrading, tower Siting, construction, modification, and whether such activities would have the modifications, load shaping projects (such as operation, and decommissioning of small- potential to cause significant impacts on such the installation and use of flywheels and scale educational facilities (including, but refuge, sanctuary, or area. Areas of high battery arrays), changing insulators, and not limited to, conventional teaching biological sensitivity include, but are not replacement of poles, circuit breakers, laboratories, libraries, classroom facilities, limited to, areas of known ecological conductors, transformers, and crossarms. auditoriums, museums, visitor centers, importance, whale and marine mammal B4.7 Fiber optic cable exhibits, and associated offices) within or mating and calving/pupping areas, and fish contiguous to a previously disturbed or and invertebrate spawning and nursery areas Adding fiber optic cables to transmission developed area (where active utilities and recognized as being limited or unique and facilities or burying fiber optic cable in currently used roads are readily accessible). vulnerable to perturbation; these areas can existing powerline or pipeline rights-of-way. Operation may include, but is not limited to, occur in bays, estuaries, near shore, and far Covered actions may include associated purchase, installation, and operation of offshore, and may vary seasonally. No vaults and pulling and tensioning sites equipment (such as audio/visual and permanent facilities or devices would be outside of rights-of-way in nearby previously laboratory equipment) commensurate with constructed or installed. Covered actions do disturbed or developed areas. the educational purpose of the facility. not include drilling of resource exploration B4.8 Electricity transmission agreements B3.15 Small-scale indoor research and or extraction wells. New electricity transmission agreements, development projects using nanoscale B4. Categorical Exclusions Applicable to materials Electrical Power and Transmission and modifications to existing transmission Siting, construction, modification, arrangements, to use a transmission facility B4.1 Contracts, policies, and marketing and operation, and decommissioning of facilities of one system to transfer power of and for for indoor small-scale research and allocation plans for electric power another system, provided that no new development projects and small-scale pilot Establishment and implementation of generation projects would be involved and projects using nanoscale materials in contracts, policies, and marketing and no physical changes in the transmission accordance with applicable requirements allocation plans related to electric power system would be made beyond the (such as engineering, worker safety, acquisition that involve only the use of the previously disturbed or developed facility procedural, and administrative regulations) existing transmission system and existing area. necessary to ensure the containment of any generation resources operating within their hazardous materials. Construction and normal operating limits. B4.9 Multiple use of powerline rights-of-way modification activities would be within or Granting or denying requests for multiple B4.2 Export of electric energy contiguous to a previously disturbed or uses of a transmission facility’s rights-of-way developed area (where active utilities and Export of electric energy as provided by (including, but not limited to, grazing currently used roads are readily accessible). Section 202(e) of the Federal Power Act over permits and crossing agreements for electric existing transmission systems or using lines, water lines, natural gas pipelines, B3.16 Research activities in aquatic transmission system changes that are environments communications cables, roads, and drainage themselves categorically excluded. culverts). Small-scale, temporary surveying, site characterization, and research activities in B4.3 Electric power marketing rate changes B4.10 Removal of electric transmission aquatic environments, limited to: Rate changes for electric power, power facilities (a) Acquisition of rights-of-way, easements, transmission, and other products or services Deactivation, dismantling, and removal of and temporary use permits; provided by a Power Marketing electric transmission facilities (including, but (b) Installation, operation, and removal of Administration that are based on a change in not limited to, electric powerlines, passive scientific measurement devices, revenue requirements if the operations of substations, and switching stations) and including, but not limited to, antennae, tide generation projects would remain within gauges, flow testing equipment for existing normal operating limits. abandonment and restoration of rights-of-way wells, weighted hydrophones, salinity (including, but not limited to, associated measurement devices, and water quality B4.4 Power marketing services and access roads). activities measurement devices; B4.11 Electric power substations and (c) Natural resource inventories, data and Power marketing services and power interconnection facilities sample collection, environmental management activities (including, but not monitoring, and basic and applied research, limited to, storage, load shaping and Construction or modification of electric excluding (1) large-scale vibratory coring balancing, seasonal exchanges, and other power substations or interconnection techniques and (2) seismic activities other similar activities), provided that the facilities (including, but not limited to, than passive techniques; and operations of generating projects would switching stations and support facilities). (d) Surveying and mapping. remain within normal operating limits. B4.12 Construction of powerlines These activities would be conducted in accordance with, where applicable, an B4.5 Temporary adjustments to river Construction of electric powerlines approved spill prevention, control, and operations approximately 10 miles in length or less, or response plan and would incorporate Temporary adjustments to river operations approximately 20 miles in length or less appropriate control technologies and best to accommodate day-to-day river within previously disturbed or developed management practices. None of the activities fluctuations, power demand changes, fish powerline or pipeline rights-of-way.
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B4.13 Upgrading and rebuilding existing the potential to cause a significant increase B5.8 Import or export natural gas, with new powerlines in energy consumption in a state or region. cogeneration powerplant Upgrading or rebuilding approximately 20 B5.2 Modifications to pumps and piping Approvals or disapprovals of new miles in length or less of existing electric authorizations or amendments of existing Modifications to existing pump and piping powerlines, which may involve minor authorizations to import or export natural gas configurations (including, but not limited to, relocations of small segments of the manifolds, metering systems, and other under section 3 of the Natural Gas Act that powerlines. instrumentation on such configurations involve new cogeneration powerplants (as defined in the Powerplant and Industrial B5. Categorical Exclusions Applicable to conveying materials such as air, brine, carbon Fuel Use Act of 1978, as amended) within or Conservation, Fossil, and Renewable Energy dioxide, geothermal system fluids, hydrogen contiguous to an existing industrial complex Activities gas, natural gas, nitrogen gas, oil, produced water, steam, and water). Covered and requiring generally less than 10 miles of B5.1 Actions to conserve energy or water modifications would not have the potential new natural gas pipeline or 20 miles within (a) Actions to conserve energy or water, to cause significant changes to design process previously disturbed or developed rights-of- demonstrate potential energy or water flow rates or permitted air emissions. way. conservation, and promote energy efficiency B5.3 Modification or abandonment of wells B5.9 Temporary exemptions for electric that would not have the potential to cause powerplants significant changes in the indoor or outdoor Modification (but not expansion) or Grants or denials of temporary exemptions concentrations of potentially harmful plugging and abandonment of wells, under the Powerplant and Industrial Fuel substances. These actions may involve provided that site characterization has Use Act of 1978, as amended, for electric financial and technical assistance to verified a low potential for seismicity, powerplants. individuals (such as builders, owners, subsidence, and contamination of freshwater aquifers, and the actions are otherwise consultants, manufacturers, and designers), B5.10 Certain permanent exemptions for consistent with best practices and DOE organizations (such as utilities), and existing electric powerplants protocols, including those that protect governments (such as state, local, and tribal). against uncontrolled releases of harmful For existing electric powerplants, grants or Covered actions include, but are not limited materials. Such wells may include, but are denials of permanent exemptions under the to weatherization (such as insulation and not limited to, storage and injection wells for Powerplant and Industrial Fuel Use Act of replacing windows and doors); programmed brine, carbon dioxide, coalbed methane, gas 1978, as amended, other than exemptions lowering of thermostat settings; placement of hydrate, geothermal, natural gas, and oil. under section 312(c) relating to cogeneration timers on hot water heaters; installation or Covered modifications would not be part of and section 312(b) relating to certain state or replacement of energy efficient lighting, low- site closure. local requirements. flow plumbing fixtures (such as faucets, toilets, and showerheads), heating, B5.4 Repair or replacement of pipelines B5.11 Permanent exemptions allowing ventilation, and air conditioning systems, Repair, replacement, upgrading, mixed natural gas and petroleum and appliances; installation of drip-irrigation rebuilding, or minor relocation of pipelines For new electric powerplants, grants or systems; improvements in generator within existing rights-of-way, provided that denials of permanent exemptions from the efficiency and appliance efficiency ratings; the actions are in accordance with applicable prohibitions of Title II of the Powerplant and efficiency improvements for vehicles and requirements (such as Army Corps of Industrial Fuel Use Act of 1978, as amended, transportation (such as fleet changeout); Engineers permits under section 404 of the to permit the use of certain fuel mixtures power storage (such as flywheels and Clean Water Act). Pipelines may convey containing natural gas or petroleum. batteries, generally less than 10 megawatt materials including, but not limited to, air, equivalent); transportation management brine, carbon dioxide, geothermal system B5.12 Workover of existing wells systems (such as traffic signal control fluids, hydrogen gas, natural gas, nitrogen Workover (operations to restore systems, car navigation, speed cameras, and gas, oil, produced water, steam, and water. production, such as deepening, plugging automatic plate number recognition); B5.5 Short pipeline segments back, pulling and resetting lines, and squeeze development of energy-efficient cementing) of existing wells (including, but manufacturing, industrial, or building Construction and subsequent operation of not limited to, activities associated with practices; and small-scale energy efficiency short (generally less than 20 miles in length) brine, carbon dioxide, coalbed methane, gas and conservation research and development pipeline segments conveying materials (such hydrate, geothermal, natural gas, and oil) to and small-scale pilot projects. Covered as air, brine, carbon dioxide, geothermal restore functionality, provided that workover actions include building renovations or new system fluids, hydrogen gas, natural gas, operations are restricted to the existing structures, provided that they occur in a nitrogen gas, oil, produced water, steam, and wellpad and do not involve any new site previously disturbed or developed area. water) between existing source facilities and preparation or earthwork that would have the existing receiving facilities (such as facilities Covered actions could involve commercial, potential to cause significant impacts on for use, reuse, transportation, storage, and residential, agricultural, academic, nearby habitat; that site characterization has refining), provided that the pipeline institutional, or industrial sectors. Covered verified a low potential for seismicity, segments are within previously disturbed or actions do not include rulemakings, subsidence, and contamination of freshwater developed rights-of-way. standard-settings, or proposed DOE aquifers; and the actions are otherwise legislation, except for those actions listed in B5.6 Oil spill cleanup consistent with best practices and DOE B5.1(b) of this appendix. Removal of oil and contaminated materials protocols, including those that protect (b) Covered actions include rulemakings recovered in oil spill cleanup operations and against uncontrolled releases of harmful that establish energy conservation standards disposal of these materials in accordance materials. for consumer products and industrial with applicable requirements (such as the equipment, provided that the actions would B5.13 Experimental wells for injection of National Oil and Hazardous Substances small quantities of carbon dioxide not: (1) Have the potential to cause a Pollution Contingency Plan). significant change in manufacturing Siting, construction, operation, plugging, infrastructure (such as construction of new B5.7 Import or export natural gas, with and abandonment of experimental wells for manufacturing plants with considerable operational changes the injection of small quantities of carbon associated ground disturbance); (2) involve Approvals or disapprovals of new dioxide (and other incidentally co-captured significant unresolved conflicts concerning authorizations or amendments of existing gases) in locally characterized, geologically alternative uses of available resources (such authorizations to import or export natural gas secure storage formations at or near existing as rare or limited raw materials); (3) have the under section 3 of the Natural Gas Act that carbon dioxide sources to determine the potential to result in a significant increase in involve minor operational changes (such as suitability of the formations for large-scale the disposal of materials posing significant changes in natural gas throughput, sequestration, provided that (1) The risks to human health and the environment transportation, and storage operations) but characterization has verified a low potential (such as RCRA hazardous wastes); or (4) have not new construction. for seismicity, subsidence, and
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contamination of freshwater aquifers; (2) the and would incorporate appropriate control appropriate control technologies and best wells are otherwise in accordance with technologies and best management practices. management practices. applicable requirements, best practices, and B5.21 Methane gas recovery and utilization DOE protocols, including those that protect B5.18 Wind turbines systems against uncontrolled releases of harmful The installation, modification, operation, materials; and (3) the wells and associated and removal of a small number (generally not The installation, modification, operation, drilling activities are sufficiently remote so more than 2) of commercially available wind and removal of commercially available that they would not have the potential to turbines, with a total height generally less methane gas recovery and utilization systems cause significant impacts related to noise and than 200 feet (measured from the ground to installed within a previously disturbed or other vibrations. Wells may be used for the maximum height of blade rotation) that developed area on or contiguous to an enhanced oil or natural gas recovery or for (1) Are located within a previously disturbed existing landfill or wastewater treatment secure storage of carbon dioxide in saline or developed area; (2) are located more than plant that would not have the potential to formations or other secure formations. Over 10 nautical miles (about 11.5 miles) from an cause a significant increase in the quantity or the duration of a project, the wells would be airport or aviation navigation aid; (3) are rate of air emissions. Covered actions would used to inject, in aggregate, less than 500,000 located more than 1.5 nautical miles (about be in accordance with applicable tons of carbon dioxide into the geologic 1.7 miles) from National Weather Service or requirements (such as local land use and formation. Covered actions exclude activities Federal Aviation Administration Doppler zoning requirements) in the proposed project in aquatic environments. (See B3.16 of this weather radar; (4) would not have the area and would incorporate appropriate appendix for activities in aquatic potential to cause significant impacts on bird control technologies and best management environments.) or bat populations; and (5) are sited or practices. B5.14 Combined heat and power or designed such that the project would not B5.22 Alternative fuel vehicle fueling cogeneration systems have the potential to cause significant stations impacts to persons (such as from shadow Conversion to, replacement of, or flicker and other visual effects, and noise). The installation, modification, operation, and removal of alternative fuel vehicle modification of combined heat and power or Covered actions would be in accordance with fueling stations (such as for compressed cogeneration systems (the sequential or applicable requirements (such as local land natural gas, hydrogen, ethanol and other simultaneous production of multiple forms of use and zoning requirements) in the commercially available biofuels) on the site energy, such as thermal and electrical energy, proposed project area and would incorporate of a current or former fueling station, or in a single integrated system) at existing appropriate control technologies and best within a previously disturbed or developed facilities, provided that the conversion, management practices. Covered actions area within the boundaries of a facility replacement, or modification would not have include only those related to wind turbines managed by the owners of a vehicle fleet. the potential to cause a significant increase to be installed on land. in the quantity or rate of air emissions and Covered actions would be in accordance with would not have the potential to cause B5.19 Ground source heat pumps applicable requirements (such as local land use and zoning requirements) in the significant impacts to water resources. The installation, modification, operation, proposed project area and would incorporate and removal of commercially available small- B5.15 Small-scale renewable energy appropriate control technologies and best scale ground source heat pumps to support research and development and pilot projects management practices. operations in single facilities (such as a Small-scale renewable energy research and school or community center) or contiguous B5.23 Electric vehicle charging stations development projects and small-scale pilot facilities (such as an office complex) (1) Only projects, provided that the projects are The installation, modification, operation, where (a) major associated activities (such as located within a previously disturbed or and removal of electric vehicle charging drilling and discharge) are regulated, and (b) developed area. Covered actions would be in stations, using commercially available appropriate leakage and contaminant control accordance with applicable requirements technology, within a previously disturbed or measures would be in place (including for (such as local land use and zoning developed area. Covered actions are limited cross-contamination between aquifers); (2) requirements) in the proposed project area to areas where access and parking are in and would incorporate appropriate control that would not have the potential to cause accordance with applicable requirements technologies and best management practices. significant changes in subsurface (such as local land use and zoning temperature; and (3) would be located within requirements) in the proposed project area B5.16 Solar photovoltaic systems a previously disturbed or developed area. and would incorporate appropriate control The installation, modification, operation, Covered actions would be in accordance with technologies and best management practices. and removal of commercially available solar applicable requirements (such as local land B5.24 Drop-in hydroelectric systems photovoltaic systems located on a building or use and zoning requirements) in the other structure (such as rooftop, parking lot proposed project area and would incorporate The installation, modification, operation, or facility, and mounted to signage, lighting, appropriate control technologies and best and removal of commercially available small- gates, or fences), or if located on land, management practices. scale, drop-in, run-of-the-river hydroelectric systems that would (1) Involve no water generally comprising less than 10 acres B5.20 Biomass power plants within a previously disturbed or developed storage or water diversion from the stream or area. Covered actions would be in accordance The installation, modification, operation, river channel where the system is installed with applicable requirements (such as local and removal of small-scale biomass power and (2) not have the potential to cause land use and zoning requirements) in the plants (generally less than 10 megawatts), significant impacts on water quality, proposed project area and would incorporate using commercially available technology (1) temperature, flow, or volume. Covered appropriate control technologies and best Intended primarily to support operations in systems would be located up-gradient of an management practices. single facilities (such as a school and existing anadromous fish barrier that is not community center) or contiguous facilities planned for removal and where fish passage B5.17 Solar thermal systems (such as an office complex); (2) that would retrofit is not planned and where there would The installation, modification, operation, not affect the air quality attainment status of not be the potential for significant impacts to and removal of commercially available small- the area and would not have the potential to threatened or endangered species or other scale solar thermal systems (including, but cause a significant increase in the quantity or species of concern (as identified in B(4)(ii) of not limited to, solar hot water systems) rate of air emissions and would not have the this appendix). Covered actions would located on or contiguous to a building, and potential to cause significant impacts to involve no major construction or if located on land, generally comprising less water resources; and (3) would be located modification of stream or river channels, and than 10 acres within a previously disturbed within a previously disturbed or developed the hydroelectric systems would be placed or developed area. Covered actions would be area. Covered actions would be in accordance and secured in the channel without the use in accordance with applicable requirements with applicable requirements (such as local of heavy equipment. Covered actions would (such as local land use and zoning land use and zoning requirements) in the be in accordance with applicable requirements) in the proposed project area proposed project area and would incorporate requirements (such as local land use and
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zoning requirements) in the proposed project surface water or groundwater would not necessary immediately to reduce exposure to area and would incorporate appropriate collect and if such actions would reduce the contaminated household or industrial use control technologies and best management spread of, or direct contact with, the water and continuing until such time as local practices. contamination; authorities can satisfy the need for a (b) Removal of bulk containers (such as permanent remedy. B5.25 Small-scale renewable energy drums and barrels) that contain or may research and development and pilot projects contain hazardous substances, pollutants, B6.2 Waste collection, treatment, in aquatic environments contaminants, CERCLA-excluded petroleum stabilization, and containment facilities Small-scale renewable energy research and or natural gas products, or hazardous wastes The siting, construction, and operation of development projects and small-scale pilot (designated in 40 CFR part 261 or applicable temporary (generally less than 2 years) pilot- projects located in aquatic environments. state requirements), if such actions would scale waste collection and treatment Activities would be in accordance with, reduce the likelihood of spillage, leakage, facilities, and pilot-scale (generally less than where applicable, an approved spill fire, explosion, or exposure to humans, 1 acre) waste stabilization and containment prevention, control, and response plan, and animals, or the food chain; facilities (including siting, construction, and would incorporate appropriate control (c) Removal of an underground storage operation of a small-scale laboratory building technologies and best management practices. tank including its associated piping and or renovation of a room in an existing Covered actions would not occur (1) Within underlying containment systems in building for sample analysis), provided that areas of hazardous natural bottom conditions accordance with applicable requirements the action (1) Supports remedial or (2) within the boundary of an established (such as RCRA, subtitle I; 40 CFR part 265, investigations/feasibility studies under subpart J; and 40 CFR part 280, subparts F marine sanctuary or wildlife refuge, a CERCLA, or similar studies under RCRA and G) if such action would reduce the governmentally proposed marine sanctuary (such as RCRA facility investigations/ or wildlife refuge, or a governmentally likelihood of spillage, leakage, or the spread of, or direct contact with, contamination; corrective measure studies) or other recognized area of high biological sensitivity, authorities and (2) would not unduly limit unless authorized by the agency responsible (d) Repair or replacement of leaking containers; the choice of reasonable remedial alternatives for such refuge, sanctuary, or area (or after (such as by permanently altering substantial consultation with the responsible agency, if (e) Capping or other containment of contaminated soils or sludges if the capping site area or by committing large amounts of no authorization is required). If the proposed funds relative to the scope of the remedial activities would occur outside such refuge, or containment would not unduly limit alternatives). sanctuary, or area and if the activities would future groundwater remediation and if have the potential to cause impacts within needed to reduce migration of hazardous B6.3 Improvements to environmental such refuge, sanctuary, or area, then the substances, pollutants, contaminants, or control systems responsible agency shall be consulted in CERCLA-excluded petroleum and natural gas products into soil, groundwater, surface Improvements to environmental order to determine whether authorization is monitoring and control systems of an existing required and whether such activities would water, or air; (f) Drainage or closing of man-made surface building or structure (such as changes to have the potential to cause significant scrubbers in air quality control systems or impacts on such refuge, sanctuary, or area. impoundments if needed to maintain the integrity of the structures; ion-exchange devices and other filtration Areas of high biological sensitivity include, processes in water treatment systems), but are not limited to, areas of known (g) Confinement or perimeter protection provided that during subsequent operations ecological importance, whale and marine using dikes, trenches, ditches, or diversions, (1) Any substance collected by the mammal mating and calving/pupping areas, or installing underground barriers, if needed environmental control systems would be and fish and invertebrate spawning and to reduce the spread of, or direct contact recycled, released, or disposed of within nursery areas recognized as being limited or with, the contamination; existing permitted facilities and (2) there are unique and vulnerable to perturbation; these (h) Stabilization, but not expansion, of applicable statutory or regulatory areas can occur in bays, estuaries, near shore, berms, dikes, impoundments, or caps if requirements or permit conditions for and far offshore, and may vary seasonally. No needed to maintain integrity of the disposal, release, or recycling of any permanent facilities or devices would be structures; constructed or installed. Covered actions do (i) Drainage controls (such as run-off or hazardous substance or CERCLA-excluded not include drilling of resource exploration run-on diversion) if needed to reduce offsite petroleum or natural gas products that are or extraction wells, use of large-scale migration of hazardous substances, collected or released in increased quantity or vibratory coring techniques, or seismic pollutants, contaminants, or CERCLA- that were not previously collected or activities other than passive techniques. excluded petroleum or natural gas products released. or to prevent precipitation or run-off from B6.4 Facilities for storing packaged B6. Categorical Exclusions Applicable to other sources from entering the release area hazardous waste for 90 days or less Environmental Restoration and Waste from other areas; Management Activities (j) Segregation of wastes that may react Siting, construction, modification, with one another or form a mixture that expansion, operation, and decommissioning B6.1 Cleanup actions could result in adverse environmental of an onsite facility for storing packaged Small-scale, short-term cleanup actions, impacts; hazardous waste (as designated in 40 CFR under RCRA, Atomic Energy Act, or other (k) Use of chemicals and other materials to part 261) for 90 days or less or for longer authorities, less than approximately 10 neutralize the pH of wastes; periods as provided in 40 CFR 262.34(d), (e), million dollars in cost (in 2011 dollars), to (l) Use of chemicals and other materials to or (f) (such as accumulation or satellite reduce risk to human health or the retard the spread of the release or to mitigate areas). environment from the release or threat of its effects if the use of such chemicals would B6.5 Facilities for characterizing and release of a hazardous substance other than reduce the spread of, or direct contact with, sorting packaged waste and overpacking high-level radioactive waste and spent the contamination; waste nuclear fuel, including treatment (such as (m) Installation and operation of gas incineration, encapsulation, physical or ventilation systems in soil to remove Siting, construction, modification, chemical separation, and compaction), methane or petroleum vapors without any expansion, operation, and decommissioning recovery, storage, or disposal of wastes at toxic or radioactive co-contaminants if of an onsite facility for characterizing and existing facilities currently handling the type appropriate filtration or gas treatment is in sorting previously packaged waste or for of waste involved in the action. These actions place; overpacking waste, other than high-level include, but are not limited to: (n) Installation of fences, warning signs, or radioactive waste, provided that operations (a) Excavation or consolidation of other security or site control precautions if do not involve unpacking waste. These contaminated soils or materials from humans or animals have access to the release; actions do not include waste storage (covered drainage channels, retention basins, ponds, and under B6.4, B6.6, B6.10 of this appendix, and and spill areas that are not receiving (o) Provision of an alternative water supply C16 of appendix C) or the handling of spent contaminated surface water or wastewater, if that would not create new water sources if nuclear fuel.
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B6.6 Modification of facilities for storing, Appendix C to Subpart D of Part 1021— average megawatts; or (3) service to discrete packaging, and repacking waste Classes of Actions That Normally new loads of less than10 average megawatts Modification (excluding increases in Require EAs But Not Necessarily EISs over a 12-month period. capacity) of an existing structure used for Table of Contents C8 Protection of Cultural Resources and storing, packaging, or repacking waste other Fish and Wildlife Habitat C1 [Reserved] than high-level radioactive waste or spent Large-scale activities undertaken to protect C2 [Reserved] nuclear fuel, to handle the same class of cultural resources (such as fencing, labeling, C3 Electric Power Marketing Rate Changes, waste as currently handled at that structure. and flagging) or to protect, restore, or Not Within Normal Operating Limits improve fish and wildlife habitat, fish B6.7 [Reserved] C4 Upgrading, Rebuilding, or Construction passage facilities (such as fish ladders and of Powerlines minor diversion channels), or fisheries. B6.8 Modifications for waste minimization C5 Vegetation Management Program and reuse of materials C6 Erosion Control Program C9 Wetlands Demonstration Projects Minor operational changes at an existing C7 Contracts, Policies, and Marketing and Field demonstration projects for wetlands Allocation Plans for Electric Power facility to minimize waste generation and for mitigation, creation, and restoration. reuse of materials. These changes include, C8 Protection of Cultural Resources and but are not limited to, adding filtration and Fish and Wildlife Habitat C10 [Reserved] recycle piping to allow reuse of machining C9 Wetlands Demonstration Projects C10 [Reserved] C11 Particle Acceleration Facilities oil, setting up a sorting area to improve C11 Particle Acceleration Facilities Siting, construction or modification, process efficiency, and segregating two waste C12 Energy System Demonstration Actions operation, and decommissioning of low- or streams previously mingled and assigning C13 Import or Export Natural Gas Involving medium-energy (when the primary beam new identification codes to the two resulting Minor New Construction energy exceeds approximately 100 million wastes. C14 Water Treatment Facilities electron volts and the average beam power B6.9 Measures to reduce migration of C15 Research and Development exceeds approximately 250 kilowatts or contaminated groundwater Incinerators and Nonhazardous Waste where the average current exceeds 2.5 Incinerators milliamperes) particle acceleration facilities, Small-scale temporary measures to reduce C16 Large Waste Packaging and Storage including electron beam acceleration migration of contaminated groundwater, Facilities facilities, and associated beamlines, storage including the siting, construction, operation, rings, colliders, and detectors for research C1 [Reserved] and decommissioning of necessary facilities. and medical purposes, within or contiguous These measures include, but are not limited C2 [Reserved] to a previously disturbed or developed area to, pumping, treating, storing, and reinjecting (where active utilities and currently used C3 Electric Power Marketing Rate Changes, water, by mobile units or facilities that are roads are readily accessible). Not Within Normal Operating Limits built and then removed at the end of the C12 Energy System Demonstration Actions action. Rate changes for electric power, power transmission, and other products or services Siting, construction, operation, and B6.10 Upgraded or replacement waste provided by Power Marketing decommissioning of energy system storage facilities Administrations that are based on changes in demonstration actions (including, but not limited to, wind resource, hydropower, Siting, construction, modification, revenue requirements if the operations of geothermal, fossil fuel, biomass, and solar expansion, operation, and decommissioning generation projects would not remain within normal operating limits. energy, but excluding nuclear). For purposes of a small upgraded or replacement facility of this category, ‘‘demonstration actions’’ (less than approximately 50,000 square feet C4 Upgrading, Rebuilding, or Construction means actions that are undertaken at a scale in area) within or contiguous to a previously of Powerlines to show whether a technology would be disturbed or developed area (where active Upgrading or rebuilding more than viable on a larger scale and suitable for utilities and currently used roads are readily approximately 20 miles in length of existing commercial deployment. accessible) for storage of waste that is already powerlines; or construction of powerlines (1) C13 Import or Export Natural Gas at the site at the time the storage capacity is More than approximately 10 miles in length Involving Minor New Construction to be provided. These actions do not include outside previously disturbed or developed the storage of high-level radioactive waste, powerline or pipeline rights-of-way or (2) Approvals or disapprovals of spent nuclear fuel or any waste that requires more than approximately 20 miles in length authorizations to import or export natural gas special precautions to prevent nuclear within previously disturbed or developed under section 3 of the Natural Gas Act involving minor new construction (such as criticality. (See also B6.4, B6.5, B6.6 of this powerline or pipeline rights-of-way. adding new connections, looping, or appendix, and C16 of appendix C.) C5 Vegetation Management Program compression to an existing natural gas or B7. Categorical Exclusions Applicable to Implementation of a Power Marketing liquefied natural gas pipeline, or converting International Activities Administration system-wide vegetation an existing oil pipeline to a natural gas management program. pipeline using the same right-of-way). B7.1 Emergency measures under the International Energy Program C6 Erosion Control Program C14 Water Treatment Facilities Planning and implementation of Implementation of a Power Marketing Siting, construction (or expansion), emergency measures pursuant to the Administration system-wide erosion control operation, and decommissioning of International Energy Program. program. wastewater, surface water, potable water, and sewage treatment facilities with a total C7 Contracts, Policies, and Marketing and B7.2 Import and export of special nuclear capacity greater than approximately 250,000 Allocation Plans for Electric Power or isotopic materials gallons per day, and of lower capacity Establishment and implementation of Approval of import or export of small wastewater and surface water treatment contracts, policies, and marketing and facilities whose liquid discharges are not quantities of special nuclear materials or allocation plans related to electric power subject to external regulation. isotopic materials in accordance with acquisition that involve (1) The applicable requirements (such as the Nuclear interconnection of, or acquisition of power C15 Research and Development Non-Proliferation Act of 1978 and the from, new generation resources that are equal Incinerators and Nonhazardous Waste ‘‘Procedures Established Pursuant to the to or less than 50 average megawatts; (2) Incinerators Nuclear Non-Proliferation Act of 1978’’ (43 changes in the normal operating limits of Siting, construction (or expansion), FR 25326, June 9, 1978)). generation resources equal to or less than 50 operation, and decommissioning of research
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and development incinerators for any type of D1 [Reserved] regasification or storage facilities) or waste and of any other incinerators that significant expansions and modifications of D2 Nuclear Fuel Reprocessing Facilities would treat nonhazardous solid waste (as existing pipelines or related facilities. designated in 40 CFR 261.4(b)). Siting, construction, operation, and decommissioning of nuclear fuel D9 Import or Export of Natural Gas C16 Large Waste Packaging and Storage reprocessing facilities. Involving Major Operational Change Facilities D3 Uranium Enrichment Facilities Approvals or disapprovals of Siting, construction, modification to authorizations to import or export natural gas increase capacity, operation, and Siting, construction, operation, and under section 3 of the Natural Gas Act decommissioning of uranium enrichment decommissioning of packaging and involving major operational changes (such as facilities. unpacking facilities (such as characterization a major increase in the quantity of liquefied operations) and large storage facilities D4 Reactors natural gas imported or exported). (greater than approximately 50,000 square feet in area) for waste, except high-level Siting, construction, operation, and D10 Treatment, Storage, and Disposal radioactive waste, generated onsite or decommissioning of power reactors, nuclear Facilities for High-Level Waste and Spent resulting from activities connected to site material production reactors, and test and Nuclear Fuel research reactors. operations. These actions do not include Siting, construction, operation, and storage, packaging, or unpacking of spent D5 [Reserved] decommissioning of major treatment, storage, nuclear fuel. (See also B6.4, B6.5, B6.6, and and disposal facilities for high-level waste B6.10 of appendix B.) D6 [Reserved] and spent nuclear fuel, including geologic Appendix D to Subpart D of Part 1021— D7 Contracts, Policies, and Marketing and repositories, but not including onsite Classes of Actions that Normally Allocation Plans for Electric Power replacement or upgrades of storage facilities Require EISs Establishment and implementation of for spent nuclear fuel at DOE sites where contracts, policies, and marketing and such replacement or upgrade would not Table of Contents allocation plans related to electric power result in increased storage capacity. D1 [Reserved] acquisition that involve (1) The D2 Nuclear fuel reprocessing facilities interconnection of, or acquisition of power D11 Waste Disposal Facilities for D3 Uranium enrichment facilities from, new generation resources greater than Transuranic Waste D4 Reactors 50 average megawatts; (2) changes in the Siting, construction or expansion, and D5 [Reserved] normal operating limits of generation operation of disposal facilities for transuranic D6 [Reserved] resources greater than 50 average megawatts; (TRU) waste and TRU mixed waste (TRU D7 Contracts, policies, and marketing and or (3) service to discrete new loads of 10 waste also containing hazardous waste as allocation plans for electric power average megawatts or more over a 12-month designated in 40 CFR part 261). D8 Import or export of natural gas involving period. major new facilities D12 Incinerators D9 Import or export of natural gas involving D8 Import or Export of Natural Gas Involving Major New Facilities Siting, construction, and operation of major operational change incinerators, other than research and D10 Treatment, storage, and disposal Approvals or disapprovals of development incinerators or incinerators for facilities for high-level waste and spent authorizations to import or export natural gas nonhazardous solid waste (as designated in nuclear fuel under section 3 of the Natural Gas Act 40 CFR 261.4(b)). D11 Waste disposal facilities for transuranic involving construction of major new natural waste gas pipelines or related facilities (such as [FR Doc. 2011–25413 Filed 10–12–11; 8:45 am] D12 Incinerators liquefied natural gas terminals and BILLING CODE 6450–01–P
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Part IV
The President
Proclamation 8732—Fire Prevention Week, 2011 Proclamation 8733—National School Lunch Week, 2011 Proclamation 8734—Leif Erikson Day, 2011 Proclamation 8735—Columbus Day, 2011 Executive Order 13587—Structural Reforms To Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information
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Federal Register Presidential Documents Vol. 76, No. 198
Thursday, October 13, 2011
Title 3— Proclamation 8732 of October 7, 2011
The President Fire Prevention Week, 2011
By the President of the United States of America
A Proclamation Fires, whether caused by people or nature, can have devastating effects. Hundreds of thousands of fires happen in and around American homes every year, killing or injuring thousands of people and causing untold damage to families and communities. This week, we honor the selfless first responders who put themselves on the line to safeguard us all from fire, and we reaffirm the need for Americans to practice fire safety throughout the year. This year’s Fire Prevention Week theme, ‘‘Protect Your Family from Fire,’’ encourages all Americans to promote fire prevention awareness both inside and outside the home. Everyone can take significant steps to mitigate the risk of fire, from installing and maintaining smoke alarms on every level of their home to practicing safe cooking behaviors. Families can help protect themselves by designing and practicing an escape plan that includes an outside meeting place with multiple exit paths out of each room. And, with the help of local safety officials, families can work together to protect their neighborhood with a Community Wildfire Protection Plan. In 2011, Federal firefighting grants have been provided to 16 States to assist with wildfires that have caused destruction to families, farms, and businesses. Those living with the threat of wildfire can safeguard their houses by mowing dry grasses to two inches or less, and by clearing brush, leaves, green grass, and lumber from around their homes. By taking pre- cautionary steps, and by discussing and practicing evacuation plans with our families, we can empower ourselves and our communities with the tools to prevent fires, and to save lives, property, and livestock when fires do occur. This week, our Nation honors the dedicated firefighters and other first responders who do the hard, dangerous work of keeping our communities safe from fire. Many have laid down their lives to save our friends and neighbors, and their selfless sacrifice defines the nature of courage. As we pay tribute to their memories, let us resolve to maintain our vigilance and take proactive steps to stop fire emergencies before they begin. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim October 9 through October 15, 2011, as Fire Prevention Week. On Sunday, October 16, 2011, in accordance with Public Law 107–51, the flag of the United States will be flown at half-staff on all Federal office buildings in honor of the National Fallen Firefighters Memorial Service. I call on all Americans to participate in this observance with appropriate programs and activities and by renewing their efforts to prevent fires and their tragic consequences.
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IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of October, in the year of our Lord two thousand eleven, and of the Independ- ence of the United States of America the two hundred and thirty-sixth.
[FR Doc. 2011–26720 Filed 10–12–11; 11:15 am] Billing code 3295–F2–P
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Proclamation 8733 of October 7, 2011
National School Lunch Week, 2011
By the President of the United States of America
A Proclamation
Children are America’s greatest treasure, and ensuring their health is one of our most important duties as parents, families, and community members. Our children’s continued ability to learn in the classroom, grow up healthy, and reach their full potential will depend on what we do now to secure their future. The National School Lunch Program has been a central part of our Nation’s commitment to healthy children since its inception in 1946, improving the nutrition of generations of children with affordable, nutritious meals at school. It now serves tens of millions of children every day. Despite our successes, too many American children go without proper nutri- tion. One-third of children in our country are overweight or obese, and without a major change, one-third of children born in the year 2000 will develop Type 2 diabetes during their lifetime. Schools are central to improv- ing child health, as children who eat both school breakfast and lunch may consume more than half their daily calories at school. The Healthy, Hunger-Free Kids Act of 2010 has brought historic reform to school meal programs. The law takes new steps to address childhood obesity by setting nutritional standards for foods sold in schools, updating requirements for school wellness policies, and providing more nutritional information to parents. It also works to eliminate hunger during the school day by increasing the number of eligible children enrolled in school meal programs and removing barriers to school meals for children most in need. First Lady Michelle Obama’s Let’s Move! initiative has worked with schools nationwide to create healthy opportunities for children. This year, we exceed- ed our goal of doubling the number of schools that meet the HealthierUS School Challenge. We have also engaged child care providers in adopting healthier practices, and this year 1.7 million Americans achieved the Presi- dential Active Lifestyle Award. To advance our goals even further, Let’s Move! has collaborated with individ- uals and organizations across our Nation to bring over 800 salad bars to schools, providing thousands of children with greater access to fruits and vegetables. School nutrition professionals, chefs, students, parents, and com- munities have also used their talents to develop nutritious foods for schools through the Recipes for Healthy Kids competition and the Chefs Move to Schools initiative. Good nutrition at school is an investment in our children’s futures. During National School Lunch Week, we thank the food program administrators, educators, parents, and communities who provide for our Nation’s sons and daughters, and we recommit to ensuring all our children have the healthy food they need to grow and succeed. The Congress, by joint resolution of October 9, 1962 (Public Law 87–780), as amended, has designated the week beginning on the second Sunday in October each year as ‘‘National School Lunch Week,’’ and has requested the President to issue a proclamation in observance of this week.
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NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim the week of October 9 through October 15, 2011, as National School Lunch Week. I call upon all Americans to join the dedicated individuals who administer the National School Lunch Program in appropriate activities that support the health and well-being of our Nation’s children. IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of October, in the year of our Lord two thousand eleven, and of the Independ- ence of the United States of America the two hundred and thirty-sixth.
[FR Doc. 2011–26724 Filed 10–12–11; 11:15 am] Billing code 3295–F2–P
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Proclamation 8734 of October 7, 2011
Leif Erikson Day, 2011
By the President of the United States of America
A Proclamation The first Europeans known to set foot on North America took to the ocean more than a millennium ago, facing fierce waters and an uncertain course. Led by Leif Erikson—son of Iceland and grandson of Norway—these intrepid Scandinavians sailed fearlessly into the unknown, driven by the promise of adventure and dreams of new discoveries. When they landed in modern day Canada, they founded the settlement of Vinland and established a legacy of exploration and exchange that is fundamental to our courageous spirit. Evoking the bravery and determination that characterized Erikson and his crew of pioneers, a group of Norwegians completed their own journey on October 9, 1825. Crammed into an undersized sloop named Restauration, these brave travelers sought new opportunities and embraced the same com- mitment to exploration that had driven their predecessors centuries earlier. On Leif Erikson Day, we commemorate these historic voyages and celebrate the many ways Nordic-American culture has enriched our Nation. The triumphs of Erikson and those who followed inspire us to continue reaching for new horizons. Whether developing new technologies, pushing the boundaries of medicine, or driving ever further into the vastness of space, we do so confidently, knowing that icons like Leif Erikson were able to overcome incredible odds and drive the world forward. Today, let us celebrate his life and legacy with the bold pursuit of America’s next great innovation. To honor Leif Erikson and celebrate our Nordic-American heritage, the Con- gress, by joint resolution (Public Law 88–566) approved on September 2, 1964, has authorized the President to proclaim October 9 of each year as ‘‘Leif Erikson Day.’’ NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim October 9, 2011, as Leif Erikson Day. I call upon all Americans to observe this day with appropriate ceremonies, activities, and programs to honor our rich Nordic-American heritage.
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IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of October, in the year of our Lord two thousand eleven, and of the Independ- ence of the United States of America the two hundred and thirty-sixth.
[FR Doc. 2011–26726 Filed 10–12–11; 11:15 am] Billing code 3295–F2–P
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Proclamation 8735 of October 7, 2011
Columbus Day, 2011
By the President of the United States of America
A Proclamation
On October 12, 1492, Christopher Columbus and his crewmembers sighted land after an ambitious voyage across the Atlantic Ocean. The ideals that guided them to this land—courage, determination, and a thirst for discovery— have inspired countless Americans and led to some of our Nation’s proudest accomplishments. Today, we renew our commitment to fostering the same spirit of innovation and exploration that will help future generations reach new horizons. Ten weeks before his arrival in the Americas, Columbus and his crew- members set sail from Spain in search of a westward route to Asia. Though their journey was daring, it did not yield the trade route they sought. Instead, it illuminated a continent then unknown to Europe, and established an unbreakable bond between two distant lands. These explorers, and countless others that followed them, encountered indig- enous peoples that had lived in the Western hemisphere for tens of thousands of years. On this day, we also remember the tragic hardships these commu- nities endured. We honor their countless and ongoing contributions to our Nation, and we recommit to strengthening the tribal communities that con- tinue to enrich the fabric of American life. Columbus returned to the Americas three more times after his first historic voyage, and his journey has been followed by millions of immigrants, includ- ing our Nation’s earliest settlers and Founders. Born in Genoa, Italy, Chris- topher Columbus was the first in a proud tradition of Italians to cross the Atlantic to our shores. Today, we recognize their indelible influence on our country and celebrate the remarkable ways Italian-Americans have shaped the American experience. The excitement Christopher Columbus and his crewmembers experienced that October morning is felt every day by today’s pioneers: entrepreneurs and inventors, researchers and engineers. On the anniversary of Christopher Columbus’s voyage, we celebrate the pursuit of discovery as an essential element of the American character. Embracing this heritage and inspiring young people to set their own sails, our Nation will reach the shores of an ever brighter tomorrow. In commemoration of Christopher Columbus’s historic voyage 519 years ago, the Congress, by joint resolution of April 30, 1934, and modified in 1968 (36 U.S.C. 107), as amended, has requested the President proclaim the second Monday of October of each year as ‘‘Columbus Day.’’ NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim October 10, 2011, as Columbus Day. I call upon the people of the United States to observe this day with appropriate ceremonies and activities. I also direct that the flag of the United States be displayed on all public buildings on the appointed day in honor of our diverse history and all who have contributed to shaping this Nation.
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IN WITNESS WHEREOF, I have hereunto set my hand this seventh day of October, in the year of our Lord two thousand eleven, and of the Independ- ence of the United States of America the two hundred and thirty-sixth.
[FR Doc. 2011–26727 Filed 10–12–11; 11:15 am] Billing code 3295–F2–P
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Executive Order 13587 of October 7, 2011
Structural Reforms To Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information
By the authority vested in me as President by the Constitution and the laws of the United States of America and in order to ensure the responsible sharing and safeguarding of classified national security information (classified information) on computer networks, it is hereby ordered as follows: Section 1. Policy. Our Nation’s security requires classified information to be shared immediately with authorized users around the world but also requires sophisticated and vigilant means to ensure it is shared securely. Computer networks have individual and common vulnerabilities that require coordinated decisions on risk management. This order directs structural reforms to ensure responsible sharing and safe- guarding of classified information on computer networks that shall be con- sistent with appropriate protections for privacy and civil liberties. Agencies bear the primary responsibility for meeting these twin goals. These structural reforms will ensure coordinated interagency development and reliable imple- mentation of policies and minimum standards regarding information security, personnel security, and systems security; address both internal and external security threats and vulnerabilities; and provide policies and minimum stand- ards for sharing classified information both within and outside the Federal Government. These policies and minimum standards will address all agencies that operate or access classified computer networks, all users of classified computer networks (including contractors and others who operate or access classified computer networks controlled by the Federal Government), and all classified information on those networks. Sec. 2. General Responsibilities of Agencies. Sec. 2.1. The heads of agencies that operate or access classified computer networks shall have responsibility for appropriately sharing and safeguarding classified information on computer networks. As part of this responsibility, they shall: (a) designate a senior official to be charged with overseeing classified information sharing and safeguarding efforts for the agency; (b) implement an insider threat detection and prevention program con- sistent with guidance and standards developed by the Insider Threat Task Force established in section 6 of this order; (c) perform self-assessments of compliance with policies and standards issued pursuant to sections 3.3, 5.2, and 6.3 of this order, as well as other applicable policies and standards, the results of which shall be reported annually to the Senior Information Sharing and Safeguarding Steering Com- mittee established in section 3 of this order; (d) provide information and access, as warranted and consistent with law and section 7(d) of this order, to enable independent assessments by the Executive Agent for Safeguarding Classified Information on Computer Networks and the Insider Threat Task Force of compliance with relevant established policies and standards; and
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(e) detail or assign staff as appropriate and necessary to the Classified Information Sharing and Safeguarding Office and the Insider Threat Task Force on an ongoing basis. Sec. 3. Senior Information Sharing and Safeguarding Steering Committee. Sec. 3.1. There is established a Senior Information Sharing and Safeguarding Steering Committee (Steering Committee) to exercise overall responsibility and ensure senior-level accountability for the coordinated interagency devel- opment and implementation of policies and standards regarding the sharing and safeguarding of classified information on computer networks. Sec. 3.2. The Steering Committee shall be co-chaired by senior representatives of the Office of Management and Budget and the National Security Staff. Members of the committee shall be officers of the United States as designated by the heads of the Departments of State, Defense, Justice, Energy, and Homeland Security, the Office of the Director of National Intelligence, the Central Intelligence Agency, and the Information Security Oversight Office within the National Archives and Records Administration (ISOO), as well as such additional agencies as the co-chairs of the Steering Committee may designate. Sec. 3.3. The responsibilities of the Steering Committee shall include: (a) establishing Government-wide classified information sharing and safe- guarding goals and annually reviewing executive branch successes and short- comings in achieving those goals; (b) preparing within 90 days of the date of this order and at least annually thereafter, a report for the President assessing the executive branch’s suc- cesses and shortcomings in sharing and safeguarding classified information on computer networks and discussing potential future vulnerabilities; (c) developing program and budget recommendations to achieve Govern- ment-wide classified information sharing and safeguarding goals; (d) coordinating the interagency development and implementation of prior- ities, policies, and standards for sharing and safeguarding classified informa- tion on computer networks; (e) recommending overarching policies, when appropriate, for promulgation by the Office of Management and Budget or the ISOO; (f) coordinating efforts by agencies, the Executive Agent, and the Task Force to assess compliance with established policies and standards and recommending corrective actions needed to ensure compliance; (g) providing overall mission guidance for the Program Manager-Informa- tion Sharing Environment (PM–ISE) with respect to the functions to be performed by the Classified Information Sharing and Safeguarding Office established in section 4 of this order; and (h) referring policy and compliance issues that cannot be resolved by the Steering Committee to the Deputies Committee of the National Security Council in accordance with Presidential Policy Directive/PPD–1 of February 13, 2009 (Organization of the National Security Council System). Sec. 4. Classified Information Sharing and Safeguarding Office. Sec. 4.1. There shall be established a Classified Information Sharing and Safeguarding Office (CISSO) within and subordinate to the office of the PM–ISE to provide expert, full-time, sustained focus on responsible sharing and safeguarding of classified information on computer networks. Staff of the CISSO shall include detailees, as needed and appropriate, from agencies represented on the Steering Committee. Sec. 4.2. The responsibilities of CISSO shall include: (a) providing staff support for the Steering Committee; (b) advising the Executive Agent for Safeguarding Classified Information on Computer Networks and the Insider Threat Task Force on the development of an effective program to monitor compliance with established policies
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and standards needed to achieve classified information sharing and safe- guarding goals; and (c) consulting with the Departments of State, Defense, and Homeland Security, the ISOO, the Office of the Director of National Intelligence, and others, as appropriate, to ensure consistency with policies and standards under Executive Order 13526 of December 29, 2009, Executive Order 12829 of January 6, 1993, as amended, Executive Order 13549 of August 18, 2010, and Executive Order 13556 of November 4, 2010. Sec. 5. Executive Agent for Safeguarding Classified Information on Computer Networks. Sec. 5.1. The Secretary of Defense and the Director, National Security Agency, shall jointly act as the Executive Agent for Safeguarding Classified Informa- tion on Computer Networks (the ‘‘Executive Agent’’), exercising the existing authorities of the Executive Agent and National Manager for national security systems, respectively, under National Security Directive/NSD–42 of July 5, 1990, as supplemented by and subject to this order. Sec. 5.2. The Executive Agent’s responsibilities, in addition to those specified by NSD–42, shall include the following: (a) developing effective technical safeguarding policies and standards in coordination with the Committee on National Security Systems (CNSS), as re-designated by Executive Orders 13286 of February 28, 2003, and 13231 of October 16, 2001, that address the safeguarding of classified information within national security systems, as well as the safeguarding of national security systems themselves; (b) referring to the Steering Committee for resolution any unresolved issues delaying the Executive Agent’s timely development and issuance of technical policies and standards; (c) reporting at least annually to the Steering Committee on the work of CNSS, including recommendations for any changes needed to improve the timeliness and effectiveness of that work; and (d) conducting independent assessments of agency compliance with estab- lished safeguarding policies and standards, and reporting the results of such assessments to the Steering Committee. Sec. 6. Insider Threat Task Force. Sec. 6.1. There is established an interagency Insider Threat Task Force that shall develop a Government-wide program (insider threat program) for deterring, detecting, and mitigating insider threats, including the safeguarding of classified information from exploitation, compromise, or other unauthor- ized disclosure, taking into account risk levels, as well as the distinct needs, missions, and systems of individual agencies. This program shall include development of policies, objectives, and priorities for establishing and inte- grating security, counterintelligence, user audits and monitoring, and other safeguarding capabilities and practices within agencies. Sec. 6.2. The Task Force shall be co-chaired by the Attorney General and the Director of National Intelligence, or their designees. Membership on the Task Force shall be composed of officers of the United States from, and designated by the heads of, the Departments of State, Defense, Justice, Energy, and Homeland Security, the Office of the Director of National Intel- ligence, the Central Intelligence Agency, and the ISOO, as well as such additional agencies as the co-chairs of the Task Force may designate. It shall be staffed by personnel from the Federal Bureau of Investigation and the Office of the National Counterintelligence Executive (ONCIX), and other agencies, as determined by the co-chairs for their respective agencies and to the extent permitted by law. Such personnel must be officers or full- time or permanent part-time employees of the United States. To the extent permitted by law, ONCIX shall provide an appropriate work site and adminis- trative support for the Task Force. Sec. 6.3. The Task Force’s responsibilities shall include the following:
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(a) developing, in coordination with the Executive Agent, a Government- wide policy for the deterrence, detection, and mitigation of insider threats, which shall be submitted to the Steering Committee for appropriate review; (b) in coordination with appropriate agencies, developing minimum stand- ards and guidance for implementation of the insider threat program’s Govern- ment-wide policy and, within 1 year of the date of this order, issuing those minimum standards and guidance, which shall be binding on the executive branch; (c) if sufficient appropriations or authorizations are obtained, continuing in coordination with appropriate agencies after 1 year from the date of this order to add to or modify those minimum standards and guidance, as appropriate; (d) if sufficient appropriations or authorizations are not obtained, recom- mending for promulgation by the Office of Management and Budget or the ISOO any additional or modified minimum standards and guidance developed more than 1 year after the date of this order; (e) referring to the Steering Committee for resolution any unresolved issues delaying the timely development and issuance of minimum standards; (f) conducting, in accordance with procedures to be developed by the Task Force, independent assessments of the adequacy of agency programs to implement established policies and minimum standards, and reporting the results of such assessments to the Steering Committee; (g) providing assistance to agencies, as requested, including through the dissemination of best practices; and (h) providing analysis of new and continuing insider threat challenges facing the United States Government. Sec. 7. General Provisions. (a) For the purposes of this order, the word ‘‘agencies’’ shall have the meaning set forth in section 6.1(b) of Executive Order 13526 of December 29, 2009. (b) Nothing in this order shall be construed to change the requirements of Executive Orders 12333 of December 4, 1981, 12829 of January 6, 1993, 12968 of August 2, 1995, 13388 of October 25, 2005, 13467 of June 30, 2008, 13526 of December 29, 2009, 13549 of August 18, 2010, and their successor orders and directives. (c) Nothing in this order shall be construed to supersede or change the authorities of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended; the Secretary of Defense under Executive Order 12829, as amended; the Secretary of Homeland Secu- rity under Executive Order 13549; the Secretary of State under title 22, United States Code, and the Omnibus Diplomatic Security and Antiterrorism Act of 1986; the Director of ISOO under Executive Orders 13526 and 12829, as amended; the PM–ISE under Executive Order 13388 or the Intelligence Reform and Terrorism Prevention Act of 2004, as amended; the Director, Central Intelligence Agency under NSD–42 and Executive Order 13286, as amended; the National Counterintelligence Executive, under the Counterintel- ligence Enhancement Act of 2002; or the Director of National Intelligence under the National Security Act of 1947, as amended, the Intelligence Reform and Terrorism Prevention Act of 2004, as amended, NSD–42, and Executive Orders 12333, as amended, 12968, as amended, 13286, as amended, 13467, and 13526. (d) Nothing in this order shall authorize the Steering Committee, CISSO, CNSS, or the Task Force to examine the facilities or systems of other agencies, without advance consultation with the head of such agency, nor to collect information for any purpose not provided herein. (e) The entities created and the activities directed by this order shall not seek to deter, detect, or mitigate disclosures of information by Govern- ment employees or contractors that are lawful under and protected by the Intelligence Community Whistleblower Protection Act of 1998, Whistleblower
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Protection Act of 1989, Inspector General Act of 1978, or similar statutes, regulations, or policies. (f) With respect to the Intelligence Community, the Director of National Intelligence, after consultation with the heads of affected agencies, may issue such policy directives and guidance as the Director of National Intel- ligence deems necessary to implement this order. (g) Nothing in this order shall be construed to impair or otherwise affect: (1) the authority granted by law to an agency, or the head thereof; or (2) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (h) This order shall be implemented consistent with applicable law and appropriate protections for privacy and civil liberties, and subject to the availability of appropriations. (i) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
THE WHITE HOUSE, October 7, 2011.
[FR Doc. 2011–26729 Filed 10–12–11; 11:15 am] Billing code 3295–F2–P
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Reader Aids Federal Register Vol. 76, No. 198 Thursday, October 13, 2011
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